Commercial Litigation and Arbitration

Rule 12(f) Motion to Strike May Be Directed at Expert Report — Construing Report to be a “Pleading”

Barnes v. District of Columnbia, 2012 U.S. Dist. LEXIS 133764 (D.D.C. Sept. 19, 2012):

Under Federal Rule of Civil Procedure 12(f), a court may strike all or part of a pleading for insufficiency, redundancy, immateriality, impertinence, or scandalousness. See F.R.C.P 12(f); Judicial Watch, Inc. v. Dep't of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004). Under this Rule, "pleading" encompasses expert reports. See U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 474 F. Supp. 2d 75, 79 (D.D.C. 2007) (Lamberth, J.) (providing standard of review for motion to strike expert report, applying 12(f)). These motions are strongly disfavored, and the decision of whether to strike all or part of a pleading rests within the sound discretion of the Court. See Judicial Watch, 224 F.R.D. at 263 (collecting authorities); 2-12 Moore's Federal Practice-Civil § 12.37 (2006). A "motion to strike is considered an exceptional remedy and is generally disfavored," LaRouche v. Dep't of the Treasury, 2000 U.S. Dist. LEXIS 5078, 2000 WL 805214 at *13, (D.D.C. Mar. 31, 2000) (citing MOORE'S at § 12.37), and the proponent of such a motion must carry a "formidable burden." Judicial Watch, 224 F.R.D. at 264.

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