Perhaps the opposing party filed a complaint, which you and your attorneys responded to. But the opposing party hasn’t responded to your defenses in a number of months, or even years. One day, you are notified that the opposing party has moved to strike part of your pleadings. You thought that they had conceded your defenses and/or abandoned the lawsuit altogether, but they seek to breathe some life into the case now that they have properly strategized. Are you obligated to respond to this motion with substantive arguments, or did the opposing party violate proper procedure by delaying the motion? Even if proper procedure was not followed, will the court grant the motion anyways?
What is a Motion to Strike?
A motion to strike is a request to a judge that part of a party’s pleading or a piece of evidence be removed from the record. Federal Rule of Civil Procedure (FRCP) 12 governs federal motions to strike. Under Rule 12(f), part of a pleading may be struck if it is redundant, immaterial, impertinent, or scandalous.
Untimely Motion to Strikes
A court will strike a defense that is clearly insufficient as a matter of law. This can occur when the affirmative defense does not meet the pleading requirements of FRCP 8 and 9. The court may strike a pleading on its own, called “sua sponte” or 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. A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
Motions must be made in a timely manner, or else a party waives its opportunity to raise the motion. However, courts generally enjoy wide discretion in determining whether to strike an affirmative defense under Rule 12(f) in order to minimize delay, prejudice, and confusion by narrowing the issues for discovery and trial.
