Opinion
No. 01-2679-MaV
October 29, 2002
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE
Before the court is plaintiff Beverly Dunn's motion to strike, filed October 10, 2002. Dunn brought this action alleging that defendant Sharp Manufacturing Company of America wrongfully terminated her employment because of medical disability in violation of the Family and Medical Leave Act and the Tennessee Human Rights Act. On September 30, 2002, Sharp moved for summary judgment. Dunn then filed the present motion to strike Sharp's motion, its exhibits, and all testimony. (Pl.'s Mot. to Strike Exs., Testimony, and App. of Def. for Summ. J. at 1.) This motion was referred by District Judge Samuel H. Mays, Jr. to the United States Magistrate Judge for determination.
As grounds for the motion, Dunn argues that Sharp's exhibits and testimony are inadmissible because Sharp failed to make the initial discovery disclosures required by Federal Rule of Civil Procedure 26(a). Sharp counterargues (1) that Dunn's motion is an untimely discovery motion; (2) that, as such, Dunn's motion fails in form and substance to comply with Local Rules 26.1(b) and 7(2); (3) that Sharp has already responded to the plaintiff's discovery requests and supplemented those responses; and (4) that Dunn has not previously objected to any discovery activity, has not previously moved to compel discovery, did not object to Sharp's use of the same documents as deposition exhibits, and has neither shown nor alleged any prejudice.
Dunn's motion to strike does not identify its procedural basis. The court assumes Dunn is proceeding under Federal Rule of Civil Procedure 12(f) "Motion to Strike." Federal Rule of Civil Procedure Rule 12(f) authorizes a court to strike certain specified types of matters "from any pleading":
Upon motion made by a party before responding to a pleading, or if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
However, exhibits to memoranda in support of motions, or the memoranda themselves, for that matter, are not among the documents identified as "pleadings" in Rule 7(a) of the Federal Rules of Civil Procedure. Rule 7(a) enumerates only "a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint . . . and a third-party answer" as pleadings. "No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer." FED. R. CIV. P. 7(a).
The court finds therefore that a motion to strike is not the proper procedural device to object to exhibits attached to a motion for summary judgment. See Dawson v. City of Kent, 682 F. Supp. 920, 922 (N.D. Ohio 1988) (finding motion to strike relates only to pleadings and is inapplicable to other filings); Lombard v. MCI Telecommunications Corp., 13 F. Supp.2d 621, 625 (N.D. Ohio 1998) (refusing to strike exhibits to summary judgment motion, holding that Rule 12(f) provides no basis for doing so). It is enough for the movant to make its objections known in a reply memorandum if one is permitted, in open court if a hearing is held, or otherwise. See Lombard, 13 F. Supp.2d at 625 (noting that a court may, at its discretion, disregard inadmissible evidence). In addition, although the facts sometimes warrant it, striking a matter is a drastic remedy and disfavored by the courts. FDIC v. Butcher, 660 F. Supp. 1274, 1277 (E.D. Tenn. 1987); Federal Sav, and Loan Ins. Corp. v. Burdette, 696 F. Supp. 1183, 1186 (E.D. Tenn. 1988).
Dunn's motion is in essence a motion for sanctions under Rule 37(c)(1) for a failure to disclose, and the court will treat it as such. Rule 37(c)(1), in clear and plain language, applies to a party's failure to make its initial disclosures pursuant to Federal Rule of Civil procedure 26:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.
As a Rule 37(c)(1) motion, Dunn's motion is both untimely and non-compliant in form and substance with the Local Rules. The Rule 16(b) Scheduling Order in this case established a discovery deadline of August 31, 2002. ( See Rule 16(b) Scheduling Order, Dunn v. Sharp Manufacturing Co. of Amer., Civil Case No. 01-2679-G/V (W.D. Tenn., Dec. 17, 2002.) Local Rule 26.1(e) requires all motions in connection with disputed discovery to be filed no later than the deadline for discovery designated in the scheduling order. (W.D. Tenn. LR 26.1.) In addition, with her motion, the plaintiff failed to file a certificate of consultation with counsel for the opposing party as required by Federal Rules of Civil Procedure and Local Rule 7.2(a)(1)(B). A discovery motion must be accompanied by "a certificate of counsel . . . affirming that, after consultation between the parties to the controversy, they are unable to reach an accord as to all issues. . . .". (W.D. Tenn. LR 7.2.) The rule further provides that the failure to file an accompanying certificate of consultation "may be deemed good grounds for denying the motion." Id. The dispute presented here is one of those particularly suitable for resolution through the consultation process before seeking court-ordered relief.
Moreover, it appears that Sharp has complied with all of its discovery obligations. Sharp's attorney avers in an affidavit attached to Sharp's response that Sharp copied at its expense 623 documents encompassed by Sharp's Rule 26(a) disclosure requirements and documents responsive to Dunn's discovery requests, that he timely hand-delivered the documents on July 12, 2002, to Dunn's attorney; that Sharp later supplemented those disclosures; that those disclosures included most if not all of the disputed exhibits; and that Dunn never before objected to the content or sufficiency of Sharp's Rule 26(a) disclosures. (Memorandum Resp. of Def. to Pl.'s Mot. to Strike Exs., Testimony, and App. of Def. for Summ. J. at 10-12.) Sharp's assertions are credible, and Sharp has substantially complied with its discovery obligations under Rules 26, 33, and 34.
Finally, Dunn does not plead any harm or prejudice as a result of Sharp's alleged failure to disclose any of the exhibits to the motion. The documents at issue were used as deposition exhibits, Dunn had a chance to object to each during depositions, and Dunn did not object to any of them. (Mem. Resp. of Def. to Pl.'s Mot. to Strike Exs., Testimony, and App. of Def. for Summ. J. at 12.) None of Sharp's exhibits are "smoking guns"; they all appear to be routine for a case of this nature.
The following exhibits are attached to Sharp's Motion for Summary Judgment:
Ex. 1 — Deposition of Beverly Dunn
Ex. 2 — Affidavit of T.C. Jones, Jr., Vice President of Human Resources and General Affairs for Sharp.
Jones Affidavit Exs. 1-22 — Disciplinary reports from Dunn's personnel file.
Even if one of the exhibits is a document that Sharp was obligated to disclose and failed to disclose, Dunn had ample opportunity to compel its disclosure and/or to object to its use in these proceedings. This court finds persuasive the case of Cash v. State Farm Fire Cas. Co., 125 F. Supp. 474, 476-77 (M.D. Ala. 2000), cited by Sharp. In Cash, the plaintiff moved to strike an affidavit and an insurance policy that the defendant had attached as exhibits to a motion for summary judgment. The court found that the plaintiff had never attempted to compel the policy's disclosure, even though the plaintiff knew of its existence for at least six months. Although the court recognized that the defendant failed to include the policy in its Rule 26(a) disclosures, it firmly observed that "the moving party . . . may not wait until the summary judgment stage to object to the use of materials that it has made no prior reasonable efforts to obtain." Cash, 125 F. Supp. at 477.
Accordingly, Rule 37(c)(1) sanctions are unwarranted because Dunn's motion is untimely, Sharp has provided Dunn with responsive documents, Dunn failed to make any effort to compel production of other documents, and Dunn has not demonstrated any harm. Based on the foregoing, Dunn's motion is denied, both in its original form as a motion to strike and in its more lenient construction as a motion for Rule 37 sanctions.
IT IS SO ORDERED October 29, 2002.