From yesterday's decision by Magistrate Judge Jacqueline M. DeLuca (D. Neb.) in Wilson v. Noshirvan:
Federal Rule of Civil Procedure 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) is "permissive" and grants the Court liberal discretion when ruling on a motion to strike.
Striking is an extreme measure and courts view motions to strike with disfavor. The purpose of a Rule 12(f) motion to strike is to "minimize delay, prejudice, and confusion." When abused, Rule 12(f) can multiply proceedings, causing unnecessary disputes and delays. Given this, Rule 12(f) motions will not be granted without a "showing of prejudicial harm." "A motion to strike a defense will be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear."
Plaintiff moves to strike the entirety of paragraph 58 in Defendant's Amended Answer. Paragraph 58 provides:
Plaintiff's action is frivolous under Neb. Rev. Stat. §25-824. Under Nebraska law, a frivolous action is defined as "a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit." Trausch v. Hagemeier, 313 Neb. 538. Plaintiff allegations of "materially false statements" are either true, opinion, falsely characterized by Plaintiff or wholly irrelevant to the alleged causes of action. For example, Plaintiff claims Defendant falsely labeled him as a three-time sex offender despite only two sex offender convictions in Nebraska. However, Defendant affirmatively alleges that Plaintiff was also charged for a sexual offense in Iowa. Plaintiff alleges false assertions of child endangerment and fraudulent behavior on the part of Plaintiff. However, Defendant affirmatively alleges there are opinions derived from observations of Plaintiff's conduct. Plaintiff alleges defamatory use of the term pedophile. However, Defendant affirmatively alleges that the term was used colloquially as an opinion derived from observations of Plaintiff's conduct and criminal history.
