Are You Involved in a Lawsuit That Has Dragged On?

Gravel and scale on brown wooden table

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.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

Share this post

Silvino Diaz

Silvino E. Diaz’s practice ranges from Civil and Commercial Litigation to Entertainment and Intellectual Property Law. Silvino has earned a reputation as one of Puerto Rico’s foremost advocates for independent musicians and artists. As a result of his sustained commitment to creative industries, he was named Professor of Intellectual Property Law at Atlantic University College (Guaynabo, PR) – the Caribbean’s leading digital arts institution – where he spearheaded the “Introduction to IP” course for both the graduate and undergraduate programs, and was appointed by the Office of the President to develop an Intellectual Property graduate curriculum, where he served until moving to Miami in 2017. He is the founder of the service known as Starving Artists, where he offers innovative business and legal counsel for artists and creatives.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

Leave a Reply

Your email address will not be published. Required fields are marked *



Contact Us

"*" indicates required fields