• October 4, 2013
Jim Maloney, local boxer, working the heavy bag. Image from the Boston Public Library.

Jim Maloney, local boxer, working the heavy bag. Image from the Boston Public Library.

Update (October 4, 2013):

You heard it here first: “[F]ormal ‘motions to strike’ serve no purpose other than to crowd the docket and circumvent court rules limiting the number and length of memoranda.” (See Order at p.5.)  On the other hand, defendants Party City and Amscan succeeded in getting two of four counts in the complaint against them tossed out with their accompanying motion to dismiss, so what is it to them that they struck out on their motion to strike?

Original post (September 11, 2013): Every once in a while, I want to bring a motion to strike.  Specifically, I want the judge to put on boxing gloves and hit my adversary in the side of the head.  Not a lethal blow (which would likely trigger all kinds of (lame) due process arguments).  Just a hard whack.  I would just like the judge to ring my adversary’s bell to stop the monkeying around and progress more directly toward the resolution of the litigation.

Thus far in my career, with a Herculean exercise of self-control, I have successfully resisted the temptation of bringing such a motion to strike.

In fact, you might want to think twice before bringing one yourself.  Are you sure you even know what one is?

Seven years ago, U.S. District Court Judge Patrick S. Schiltz (D. Minn.) sent a message in the linked case to Minnesota federal litigators making the point quite clearly.  Nevertheless, Minnesota litigators still bring so-called motions to strike regularly, which are inconsistent with Judge Schiltz’s direction.

On the other hand, not every judge seems to feel quite as strongly as Judge Schiltz as to the morality of bad motion-naming or even multiple/serial unauthorized filings related to a single motion.  So a litigant may improperly file a “sur-reply” without leave of court or mis-name a “motion to strike” and, far from being chided for the additional filings, another trial court judge might even appreciate the additional input to decision-making.

Conclusion/practice-pointer:  know the rules and know the court.  If you’ve got that down, you might have a sense of how rigidly some rules may be applied or how flexibly others may be, although it is obviously always the safer course to know and adhere to both the letter and the spirit of the rules.

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