Free Motion to Strike - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona HARRIET BERNICK AZ Bar No. 13462 Assistant U.S. Attorney 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 FAX: (602) 514-7760 [email protected] Attorneys for Defendant, John E. Potter

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Donald Chapman, Plaintiff, CIV-03-2537-PHX-DGC v. John E. Potter, Postmaster General, United States Postal Service; National Postal Mail Handler's Union, Defendants. MOTION TO STRIKE

The defendant, John E. Potter, Postmaster General, United States Postal Service, move this Court to strike the 90 pages attached to Plaintiff's First Amended Complaint. Defendant filed a Motion to Dismiss on May 5, 2004 which stated that Plaintiff attached approximately 90 pages of exhibits containing detailed evidentiary material. In this Motion to Dismiss, Defendant sought dismissal of the First Amended Complaint. Defendant did not ask that the 90 pages of material be stricken from Plaintiff's Complaint. While Defendant did object to the 90 pages attached to the Complaint, it was not in the form of a Motion to Strike. Although the time requirement to make a Motion to Strike has passed since it is 20 days after the service of the pleadings upon the party, Defendant respectfully requests this Court to Strike all 90 pages of documents attached to the Complaint on its own initiative pursuant to Fed. R. Civ. P. 12 (f). Under Fed. R. Civ. P. 12 (f), upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial or impertinent,

Case 2:03-cv-02537-DGC

Document 113

Filed 10/25/2005

Page 1 of 3

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or scandalous material. In this case, Plaintiff is attempting to subvert the Federal Rules of Evidence by attaching documents to the Complaint on which he bases his case. By attaching the documents to his Complaint, he can guarantee admissibility without having the Court determine whether the documents are truly admissible in this case. Without this Court's review of the documents to determine their admissibility at trial, Defendant will be severely prejudiced in this case. "Parties may attach written instruments as exhibits to their pleadings which are generally speaking, documents evidencing legal rights or duties such as deeds, wills, bonds, leases, insurance policies or security agreements." See Correction Officers Benevolent Association of Rockland County, et. al. v. Kralik, 226 F.R.D.175,176 (S.D.N.Y. 2005). Although Motions to Strike are generally disfavored and will not be granted unless the matter asserted clearly has no bearing on the issue in dispute, this court has already stated that in this case, "Plaintiff clearly has pled more facts than required by Rule 8, and the numerous attachments to his complaint appear to be largely unnecessary..." See Docket 20. For the foregoing reasons, the undersigned attorney respectfully requests that all of the documents attached to the First Amended Complaint be stricken. Respectfully submitted this 25th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Harriet M. Bernick HARRIET M. BERNICK Assistant U.S. Attorney

2 Case 2:03-cv-02537-DGC Document 113 Filed 10/25/2005 Page 2 of 3

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CERTIFICATE OF SERVICE I hereby certify that on October 25, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

William R. Hobson Law Offices of William R. Hobson 7 7303 W. Boston Street Chandler, Arizona 85226
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Kathleen Keller Bredhoff & Kaiser 805 15th St NW, Ste 1000 10 Washington, DC 20005
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S/ LaRee Zickefoose U.S. Attorney Office's