Summary
In Pullins v. Eimicke, the Pullins Plaintiffs and others brought claims against Palmero and a number of other defendants.Pullins v. Eimicke, et al., No. 05 Civ. 0082 (TMR) (Dkt. No. 1). The suit was filed in the Court of Common Pleas in Clark County, Ohio, but removed to the Southern District of Ohio. (Id.) Meanwhile, in VWE's Chapter 11 proceeding, In re the VWE Group, Inc., No. 04-20308 (ASH), VWE moved to extend the automatic stay of actions against it imposed pursuant to 11 U.S.C. § 362 to also stay litigation against Palmero.
Summary of this case from Cohain v. KlimleyOpinion
Case No. 3:05-cv-082.
June 9, 2006
DECISION AND ORDER MOTION TO STRIKE
This case is before the Court on Motion to Strike of Defendants Laura and Brooks Klimley (Doc. No. 46) which Plaintiffs oppose (Doc. No. 47) and as to which the moving Defendants have filed a Reply Memorandum in support (Doc. No. 49). The Klimleys seek to have the Court strike ¶ 83 of the Third Amended Complaint on the grounds that it contains a total amount of compensatory damages in excess of the amount calculable by adding the investments of various Plaintiffs set forth in the body of the Third Amended Complaint.
In response, Plaintiff admits the amount in ¶ 83 does, inadvertently, include amounts relating to former Plaintiff Erma Hyser which should not be included and request yet another amendment of the complaint to eliminate her. However, in general they assert the prayer should not be reduced to the degree the moving Defendants seek.
Motions to strike under Fed.R.Civ.P. 12(f) are viewed with disfavor by the federal courts and rarely granted. Wright Miller, Federal Practice and Procedure: Civil 3d § 1380. In particular, such motions are not a proper means to seek dismissal of all or part of a complaint. Id. In this instance, the discrepancies between the individual amounts invested and the total pled in the demand for relief can be thoroughly explored in discovery. There is nothing impertinent or scandalous about the prayer and its admitted inaccuracy is unlikely to prejudice Defendants.
The Motion to Strike is DENIED.