Concept
Motion to Strike
Motions addressed to the face of the pleadings
Motion to Strike
Rule 12(f) lets the court strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.1 Striking removes the offending material so that it plays no further part in the case. The rule names two targets, and each raises its own question. A defense is a response in the answer, and the question is whether the law makes that response sufficient. Matter is content, meaning words in any pleading that repeat, wander, or offend, and the question is whether those words belong in the case.
The pleading motions divide by defect. A claim that fails in law belongs to Rule 12(b)(6),2 a pleading too vague to answer belongs to Rule 12(e),3 and clutter belongs to Rule 12(f). The motion reaches less than its name suggests, because the rule lists a defense and matter in a pleading and does not list a claim. A defendant who thinks part of a complaint fails as a matter of law must therefore use a partial Rule 12(b)(6) motion. Rule 12(f) removes scandalous or immaterial allegations and does not test legal sufficiency in whole or in part.4
Courts grant the motion rarely. Striking a party’s pleading is “an extreme and disfavored measure,”5 and motions to strike are generally disfavored because they can delay the proceedings.6 Rule 12(f) motions are rarely granted and so seldom made.7 The motion still has a use, since removing “unnecessary clutter” from a case can speed it along.8
The three subsections that follow take the targets in turn: the insufficient defense, which mirrors a defendant’s attack on a claim; the matter a court may remove from any pleading; and the rules on who may move and when.
Insufficient Defenses
A plaintiff needs a way to test a defense, just as a defendant needs a way to test a claim. Rule 12(f) provides it by authorizing the court to strike “an insufficient defense,”9 which makes the motion the plaintiff’s version of the Rule 12(b)(6) motion.10
The motion borrows the Rule 12(b)(6) standard. Both test whether the supporting allegations state a claim or defense under any applicable law.11 A defense must therefore clear two hurdles: the law must recognize it, and the defendant must plead it with more than conclusions. An affirmative defense is a pleading, so it must set out a short and plain statement of its basis, and even under notice pleading it must contain direct or inferential allegations on every element of the defense. Bare-bones conclusory allegations do not suffice.12
Reis Robotics v. Concept Industries applied a three-part test to the defendant’s affirmative defenses.13 The three questions run in order, and each names a separate way a defense can fail, so they double as a checklist for an exam answer.
The third question carries a demanding limit. Before striking, the court must be convinced that no questions of fact remain unresolved, that any questions of law are clear, and that under no set of circumstances could the defense succeed.14 A thin-looking defense therefore survives if it might succeed on some set of facts, because the court does not strike a defense merely for doubting that the defendant can prove it.
The first way a defense fails is legal: the law offers no such defense against the claim.
Nothing Bram could add would change the result, because contributory negligence is not a defense to breach of contract.15
Reis shows the other two failures. Concept’s second defense asserted breach of contract and the circumstances of an alleged fraud. The court found that the breach allegations referred to none of the elements of a breach-of-contract claim and that the fraud allegations lacked the particularity Rule 9(b) requires.16 Concept had pleaded detailed allegations in its counterclaim, but it never linked them to the defenses, and the court could not tell which counterclaim paragraphs applied to this one.17 A defense must therefore carry its own support or point to it, and detail elsewhere in the pleading does not rescue a defense that never claims it.
Concept’s third defense failed for a different reason. It merely restated the denials already in Concept’s answer, and the court called it not only unnecessary but improper as an affirmative defense.18 A defense that adds no affirmative matter adds clutter and nothing else.
The type of failure decides what the defendant can do next. The Reis court struck both defenses without prejudice, and for the third it gave Concept an opportunity to replead if it meant to raise some affirmative matter.19 A defense that fails for thin pleading can be repaired, much as a complaint can be repaired by amendment after a Rule 12(b)(6) ruling. Bram’s defense cannot be repaired, because no amendment turns contributory negligence into a defense to a contract claim. After a defense is stricken, the defendant is not usually required to file a new answer, and the court and the parties treat the existing answer as if the defense were no longer in the case.20
A defense that clears all three questions survives, however skeptical the plaintiff is of its truth.
The supplier’s complaint is a denial about what happened and not an objection to the defense as pleaded. What a plaintiff keeps if it skips the motion altogether is a question for the timing and preservation section.
Immaterial or Scandalous Matter
The second target of Rule 12(f) is content: any “redundant, immaterial, impertinent, or scandalous matter” in a pleading.22 In ordinary terms, redundant matter repeats the pleading, immaterial and impertinent matter has no bearing on the dispute, and scandalous matter offends. The labels overlap, and whether a passage falls within any of them depends on context and on the nature of the claims and issues in the case.23 A granted motion treats the stricken words as if they were not there, and sometimes strikes them from the record as well.24
Courts deny the motion unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and cause the movant some form of significant prejudice.25 The movant must satisfy both parts.
Each part has its own job. The relation part protects the pleader, because the motion is denied unless no evidence in support of the allegation would be admissible,26 so an allegation that might connect to proof stays. The prejudice part rests on what one treatise calls the unstated but self-evident premise of the motion: the offending matter may be prejudicial.27 Together the two parts confine the motion to matter that serves no purpose in the case and harms the movant.
Courts keep considerable discretion, and they may strike allegations that are repugnant or that contain superfluous descriptions rather than substantive elements of the cause of action.28 They use it sparingly. Pleading once acted as a screening device, and noncompliance could end an action with no leave to replead.29 That weight is gone, and to most judges the motion is mainly a waste of time that, even when granted, rarely accomplishes anything but delay.30
Examples show how the standard sorts allegations by their ties to the claims. Illegality is not typically an element of a negligence claim, so a defendant may call an allegation that it acted illegally beside the point. But illegality can become an element if the claim is negligence per se for violation of a traffic law, and the Matos court refused to strike an allegation of that kind.31 An allegation with a possible relation to the claim stays in the pleading.
Stronger candidates look different. In a suit for unpaid child support, an allegation about what the defendant did to bring about an earlier divorce or separation seems to have nothing to do with child support, which makes it a good candidate for striking. The answer might change if the action were for child custody.32
An exam answer on this motion must address both parts of the standard. An allegation that looks irrelevant but harms no one survives, and so does an allegation that offends but connects to the claims.
The motion also has a limit on what it can attack. A defendant who thinks a count is legally insufficient cannot reach it by moving to strike, because Rule 12(f) is for scandalous or immaterial allegations, and the proper device for attacking part of a complaint on legal grounds is a partial Rule 12(b)(6) motion.33 Punitive damages show why the line matters. They are an element of damages on a claim, typically of intentional or grossly reckless conduct, so a count seeking them alone is like pleading a count for $5,000 or for injunctive relief without pleading any basis for liability.34 The defect there is the missing basis for liability, which is the question Rule 12(b)(6) asks.35 Rule 12(f) asks something else, namely whether the words in the pleading belong in the case. A count can be legally hopeless yet closely tied to the controversy, and a paragraph can be legally harmless yet wholly unrelated. Who may bring the motion, and when, comes next.
Who May Move and When
Rule 12(f) gives two routes to a strike order, and each has its own timing.37 The court may act on its own, and the clause that says so sets no deadline.38 A party must move “either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.”39 The earlier subsections explained what the motion can reach. This one explains who may bring it and by when, because a motion aimed at a proper target still fails if it arrives too late.
The phrase “before responding” puts the party’s motion at the threshold, before the movant has engaged with the pleading. It is the same trigger the rules use for a more definite statement, which must be made before a responsive pleading is filed.40
Which of the two party clocks governs depends on whether the rules allow a response to the pleading under attack. A complaint allows one, so a defendant who wants to strike matter from a complaint must move before answering, and a defendant who answers first has used up the party’s route.41 An answer without a counterclaim ordinarily draws no responsive pleading, so “before responding” has nothing to attach to for the plaintiff. The rule then supplies a fixed 21 days running from service of the answer.42 That is the clock for a plaintiff’s motion to strike an insufficient defense in such an answer. Where a response to the answer is allowed, a counterclaim for example, the first clock governs instead.
Whitlock’s motion is late under the party clause, but the defect is still on the page, and the clause that lets the court act on its own does not depend on a party’s motion or on the passage of time.43 A late motion is not a ruling the court must make, and it does not disable the court from acting for itself.
The usual exam error is to treat the party’s deadline as a limit on the court, and the next scene shows why that reading fails.
What a missed party window costs beyond the convenience of an early ruling is a question for the section on preserved defenses.
The right clock depends on the pleading under attack, so a timing question can be run as four steps: