The Fourth Circuit Says Don't Do This

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Explore:  Motion To Strike

[author: Mack Sperling]

In a case decided last week, McKenzie v. Hall, the Fourth Circuit sent a clear message that it does not tolerate Motions to Strike. The Appellants had filed such a Motion to strike portions of an adversary's brief which they said were objectionable.

The Court struck back, quoting a Seventh Circuit decision, Redwood v. Dobson, 476 F.3d 462, 471 (7th Cir. 2007), and holding that:

  • "Motions to strike sentences or sections out of briefs waste everyone’s time. . . ."
  • "Motions to strike words, sentences, or sections out of briefs serve no purpose except to aggravate the opponent. . . . -- and . . .  this goal is not one the judicial system will help any litigant achieve."
  • "Motions to strike disserve the interest of judicial economy. The aggravation comes at an unacceptable cost in judicial time."

Op. 9 & n.3.

The proper way to deal with an objectionable brief is not a Motion to Strike. The Court said that:

The Federal Rules of Appellate Procedure provide a means to contest the accuracy of the other side’s statement of facts: that means is a brief (or reply brief, if the contested statement appears in the appellee’s brief), not a motion to strike.

Id. (emphasis added).

In case you were wondering, there's no provision for a Motion to Strike in the Federal Rules of Appellate Procedure.

 

Topics:  Motion To Strike

Published In: Civil Procedure Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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