United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
Michael J. Reagan United States District Court
personal injury lawsuit, David Boeschen (Plaintiff) alleges
that he was severely injured in a vehicular collision and
asserts negligence claims against two Defendants - (1) Hugh
Roper, who was driving the tractor-trailer that struck
Boeschen's vehicle, and (2) Butler Transport, Roper's
employer. The Court enjoys subject matter jurisdiction under
the federal diversity statute, 28 U.S.C. 1332.
the Court is Defendant Butler Transport's June 27, 2016
motion to dismiss (under Federal Rule of Civil Procedure
12(b)(6)) or strike (under Federal Rule of Civil Procedure
12(f)) a portion of Plaintiff's first amended complaint.
Plaintiff has timely responded to the motion. For the reasons
explained below, the Court grants the motion.
Applicable Legal Standards
deciding a motion to dismiss for failure to state a claim on
which relief can be granted under Rule 12(b)(6), the district
court's task is to determine whether the complaint
includes “enough facts to state a claim to relief that
is plausible on its face.” Khorrami v.
Rolince, 539 F.3d 782, 788 (7th Cir. 2008), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Post-Twombly, district courts “must still
approach motions under Rule 12(b)(6) by ‘construing the
complaint in the light most favorable to the plaintiff,
accepting as true all well-pleaded facts alleged, and drawing
all possible inferences in her favor.'” Hecker
v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009),
cert. denied, 130 S.Ct. 1141 (2010), quoting
Tamayo v. Blagoyevich, 526 F.3d 1074, 1081 (7th Cir.
conclusions and conclusory allegations that merely recite the
elements of a claim are not entitled to the presumption of
truth afforded to well-pled facts. See McCauley v. City
of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
Therefore, after excising the allegations not accepted as
true, the Court must decide whether the remaining factual
allegations plausibly suggest entitlement to relief.
12(b)(6) motions must be decided strictly on the pleadings
and materials attached thereto, plus documents referred to in
the complaint and central to the plaintiff's claim or
subject to proper judicial notice. Fed.R.Civ.P. 12(d);
Rogers v. Cartage Co., 794 F.3d 854, 861
(7th Cir. 2015); Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687, 690 (7th Cir.
Rule 12(b)(6) motions challenge the sufficiency of the
complaint to state a claim upon which relief can be granted,
Rule 12(f) authorizes a district court to “strike from
a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Delta Consulting Group, Inc. v. R. Randle Const.,
Inc., 554 F.3d 1133, 1142 (7th Cir. 2009),
quoting Fed. R. Civ. P. 12(f).
cases mention the fact that motions to strike are generally
disfavored and infrequently granted. For instance, in
Waste Management Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001), cert. denied,
535 U.S. 904 (2002), the court explained that Rule 12(f)
motions are not favored, “‘because striking a
portion of a pleading is a drastic remedy and because it is
often sought by the movant simply as a dilatory tactic.'
5A A. Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1380, 647 (2d ed.1990).
‘a defense that might confuse the issues in the case
and would not, under the facts alleged, constitute a valid
defense to the action can and should be deleted.'”
See also In re Zarnel, 619 F.3d 156, 161
(2nd Cir. 2010). And motions to strike
are properly used to “remove unnecessary
clutter” from the pleadings. See Heller Fin., Inc.,
v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294
(7th Cir. 1989). Bearing these standards in mind,
the undersigned turns to Butler's pending motion.
II of Plaintiff's first amended complaint alleges that
Roper, an agent of Butler Transport, driving in the
scope of his employment, was negligent in various ways, e.g.,
inattention to the road, driving too fast, and failing to
sound a warning before the crash. Count I alleges that
Butler Transport was negligent in ten respects ...