United States District Court, E.D. Michigan, Southern Division
SHERRY L. VANNORTWICK, as the Personal Representative of the Estate of CLAUDE STEVENS, Plaintiff,
ANTHONY H. STEWART, et al., Defendants.
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
STRIKE DEFENDANTS BOLES' AND MARSHALL'S ANSWERS AND
MOTIONS FOR SUMMARY JUDGMENT
V. PARKER, U.S. DISTRICT JUDGE
August 2, 2017, Plaintiff initiated this civil rights lawsuit
against sixteen defendants, raising claims arising from
Claude Stevens' death while an inmate with the Michigan
Department of Corrections. Attorneys Michelle Harrell and
R.J. Cronkite from Maddin Hauser Roth & Heller, P.C.
(collectively “Maddin Hauser”) subsequently
entered their appearances on behalf of several defendants,
including Larry Marshall (“Mr. Marshall”) and
Barbara Boles (“Ms. Boles”). Maddin Hauser
subsequently moved to withdraw as counsel for Mr. Marshall
and Ms. Boles due to their inability to pay the fees charged
for Maddin Hauser's legal services. This Court granted
Maddin Hauser's motion to withdraw on November 13, 2018.
(ECF No. 99.)
thereafter moved and was granted leave to file an amended
complaint. Plaintiff filed her Amended Complaint on March 4,
2019. (ECF No. 118.) Mr. Marshall and Ms. Boles filed
separate Answers on March 14, 2019. (ECF Nos. 122, 123.) The
following day, they each filed an “Addendum” to
their Answers, which read in relevant part: “Defendant
[Barbara Boles/LarryMarshall]'s Answer to Second Amended
Complaint, as well as this Addendum, was [sic] drafted with
the assistance of a lawyer licensed to practice in the State
of Michigan, pursuant to Michigan Rule of Professional
Conduct 1.2(b).” (ECF Nos. 124, 125.) Mr. Marshall and
Ms. Boles thereafter filed separate motions for summary
judgment. (ECF Nos. 148, 149.) In the case caption of their
motions, Mr. Marshall and Ms. Boles include this statement:
“Drafted with the assistance of a lawyer licensed to
practice in the State of Michigan, pursuant to Michigan Rule
of Professional Conduct 1.2(b). It is no secret that R.J.
Cronkite from Maddin Hauser is the lawyer assisting Mr.
Marshall and Ms. Boles. (See Mot. Ex. A, ECF No.
is now seeking to strike Mr. Marshall's and Ms.
Boles' answers and motions, arguing that they are
“ghostwritten” and therefore violate Rule 11 of
the Federal Rules of Civil Procedure and Eastern District of
Michigan Local Rule 83.25(a). (ECF No. 151.) Plaintiff moves to
strike Mr. Marshall's and Ms. Boles' filings pursuant
to Federal Rule of Civil Procedure 12(f).
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.
The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days
after being served with the pleading.
Fed. R. Civ. P. 12(f). As an initial matter, Mr.
Marshall's and Ms. Boles' motions for summary
judgment are not “pleadings.” See Fed.
R. Civ. P. 7(a) (defining “pleadings” as “a
complaint and an answer; a reply to a counterclaim
denominated as such; an answer to a cross-claim…; a
third-party complaint … and a third-party answer
…”). As such, Rule 12(f) does not provide a
basis for striking their motions. See Fox v. Mich. State
Police Dep't, 173 Fed.Appx. 372, 375 (6th Cir. 2006)
(“Exhibits attached to a dispositive motion are not
‘pleadings' within the meaning of Fed.R.Civ.P. 7(a)
and are therefore not subject to a motion to strike under
Rule 12(f).”). Moreover, “[m]otions to strike are
viewed with disfavor and are not frequently granted.”
Operating Eng'rs Local 324 Health Care Plan v. G
& W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015)
(citing Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir. 1953) (“action
of striking a pleading should be used sparingly by the
courts” and should be “resorted to only when
required for the purposes of justice” and when
“the pleading to be stricken has no possible relation
to the controversy”). In any event, none of the reasons
for striking pleadings apply to the subject filings.
does not suggest that Mr. Marshall or Ms. Boles have asserted
an “insufficient defense” in their answers or
motions. See Fed. R. Civ. P. 12(f). Nor does
Plaintiff explain how these filings are “redundant,
immaterial, impertinent, or scandalous.” See
id. “Courts have generally decided to strike
portions of a pleading for being impertinent or scandalous
only where the language is extreme or offensive.”
Penman v. Correct Care Sols., No. 5:18-cv-58, 2018
WL 6241621, at *1 (W.D. Ky. Nov. 28, 2018) (citing cases).
“‘Scandalous allegations' generally means
‘any allegation that unnecessarily reflects on the
moral character of an individual or states anything in
repulsive language that detracts from the dignity of the
court.'” Id. (quoting Pigford v.
Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003)).
“‘An allegation is ‘impertinent' or
‘immaterial' when it is not relevant to the issues
involved in the action.'” Id. (quoting
L & L Gold Assoc., Inc. v. Am. Cash for Gold,
LLC, No. 09-10801, 2009 WL 1658108, at *1 (E.D. Mich.
June 10, 2009)).
extent Plaintiff instead is seeking to strike the pleadings
as a sanction for a Rule 11 violation, the Court does not
find such an action warranted. Courts express
“concern” or “discontent” for
ghostwriting for two specific reasons. First is the
“undue advantage gained when unidentified attorneys
author ‘pro se' pleadings” because “we
afford a pro se litigant's pleadings a more liberal
construction than those drafted by an attorney.”
Barnett v. LeMaster, 12 Fed.Appx. 774, 778 (10th
Cir. 2001) (italics removed); Kircher v. Charter Twp. of
Ypsilanti, No. 07-13091, 2007 WL 4557714, at *4 (E.D.
Mich. Dec. 21, 2007). The second is that ghostwriting
“allows counsel to escape the obligation imposed on
members of the bar under Rule 11 of representing to the court
that there is good ground to support the assertions
made.” Kircher, 2007 WL 4557714, at *4
(internal quotation marks and citation omitted);
Barnett, 12 Fed.Appx. at 778 (“the failure to
sign a pleading shields an attorney from responsibility and
accountability for his actions”).
however, Mr. Marshall and Ms. Boles have been forthright
about the help they received from a lawyer in preparing their
answers and motions. There has been no misrepresentation to
the Court or the parties regarding the source of these
filings. As such, the Court would not be inclined to afford
the submissions a more liberal construction and thus provide
any undue advantage to these defendants.
the Court and the parties are well aware of who drafted the
filings, that individual is not shielded from responsibility
or accountability for his actions. Moreover, Plaintiff fails
to identify anything sanctionable with respect to Mr.
Marshall's or Ms. Boles' filings other than that the
documents are not signed by the attorney who assisted in
drafting them. Even if ghostwriting should be condemned,
striking the answers and motions will not punish the
individual whose conduct Plaintiff asserts is problematic.
Instead, it only punishes these pro se defendants.
these reasons, the Court is denying Plaintiff's motion to
strike and lifts the stay of the briefing period on Mr.
Marshall's and Ms. ...