Opinion
Morris S. Borden and Lester Okum, both of Cleveland, Ohio, for plaintiff.
Harley J. McNeal and Burgess, Fulton & Fulmer, all of Cleveland, Ohio, for defendant.
JONES, District Judge.
This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendant's truck driver in driving his truck into the rear of a truck driven by plaintiff. Defendant has moved to strike paragraphs 4, 6 and 7 from plaintiff's specifications of negligence on grounds that they are 'redundant and repetitious'. He also asks that the allegation 'which condition may become permanent' (in the last paragraph of the petition) be stricken and that plaintiff be ordered to plead that 'the injuries claimed will, with reasonable certainty, become permanent.'
Motions to strike allegations from a complaint are not regarded with favor and will be denied unless the allegations have no possible relation to the controversy or may prejudice the defendant. Moore v. Olsen Manufacturing Co., D.C. Ohio, 7 F.R.D. 269. The mere presence of redundant matter, not affecting the substance, is not in itself sufficient grounds for granting a motion to strike the allegations from a complaint. Gross v. Independence Shares Corp., D.C. Pa., 36 F.Supp. 541; Westmoreland Asbestos Co. v. Johns-Manville Corp., D.C.N.Y., 30 F.Supp. 389.
In this case, the plaintiff has pleaded his cause of action concisely, the entire petition being less than three pages long. Although, as defendant contends, the allegations of negligence specified in paragraphs 4, 6 and 7 of plaintiff's specifications of negligence could, perhaps, be proved under the allegations in the other specifications, they are not merely repetitious of the other specifications; rather, they allege specifically what is alleged generally in the other paragraphs. The only respect in which defendant claims they are prejudicial
is that the jurors will have the pleading of negligence against the defendant brought home to them more forcibly by the repetition. Under the circumstances, the motion to strike will be overruled.
The plaintiff agrees that the remainder of the motion is well taken and says he is willing to amend his petition to correct that error. The remainder of the motion will be granted.