From yesterday's decision by Magistrate Judge Jacqueline M. DeLuca (D. Neb.) in Wilson v. Noshirvan:

Federal Rule of Civil Procedure 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) is "permissive" and grants the Court liberal discretion when ruling on a motion to strike.

Striking is an extreme measure and courts view motions to strike with disfavor. The purpose of a Rule 12(f) motion to strike is to "minimize delay, prejudice, and confusion." When abused, Rule 12(f) can multiply proceedings, causing unnecessary disputes and delays. Given this, Rule 12(f) motions will not be granted without a "showing of prejudicial harm." "A motion to strike a defense will be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact which the court ought to hear."

Plaintiff moves to strike the entirety of paragraph 58 in Defendant's Amended Answer. Paragraph 58 provides:

Plaintiff's action is frivolous under Neb. Rev. Stat. §25-824. Under Nebraska law, a frivolous action is defined as "a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit." Trausch v. Hagemeier, 313 Neb. 538. Plaintiff allegations of "materially false statements" are either true, opinion, falsely characterized by Plaintiff or wholly irrelevant to the alleged causes of action. For example, Plaintiff claims Defendant falsely labeled him as a three-time sex offender despite only two sex offender convictions in Nebraska. However, Defendant affirmatively alleges that Plaintiff was also charged for a sexual offense in Iowa. Plaintiff alleges false assertions of child endangerment and fraudulent behavior on the part of Plaintiff. However, Defendant affirmatively alleges there are opinions derived from observations of Plaintiff's conduct. Plaintiff alleges defamatory use of the term pedophile. However, Defendant affirmatively alleges that the term was used colloquially as an opinion derived from observations of Plaintiff's conduct and criminal history.

Despite moving to strike the entire paragraph, Plaintiff only contests Defendant's allegation that "Plaintiff was also charged for a sexual offense in Iowa." Plaintiff asserts Defendant's defenses as it pertains to this allegation are legally insufficient because the Iowa proceedings are sealed by statute and the Iowa charges were dismissed. He also argues this allegation is impertinent and scandalous. Finally, he argues the Court order that the Iowa proceedings not be referenced in this litigation.

Plaintiff does not show how this allegation prejudices him. Plaintiff is not disputing that he was charged with a sexual offense in Iowa. See Filing No. 44 at 4. Whether, for example, Defendant's statement that Plaintiff is a three-time sex offender is true when Plaintiff was convicted of two sex offenses and charged with a third sex offense that was ultimately dismissed is "a question of law or fact which the court ought to hear." The defenses related to this allegation are not insufficient and this (undisputed) allegation is not impertinent or scandalous. The parties may litigate the other issues Plaintiff raises, such as whether Defendant is entitled to discovery about the purportedly sealed Iowa charges or whether Defendant should be excluded from referencing the Iowa proceedings at trial, in the normal course of litigation as this case progresses….

Here's plaintiff's summary of his argument for striking:

First, the Iowa proceedings were juvenile court proceedings. Plaintiff was fourteen years old at the time of the Iowa filing. Iowa Code § 232.147 makes juvenile court records confidential and prohibits their use in subsequent civil proceedings. A defense predicated on sealed records that Defendant had no lawful right to access cannot succeed as a matter of law. Second, the authenticated Iowa Courts Online public record reflects that both charges were dismissed—adjudication status DNU-DISMISSED—with no finding of guilt. A dismissed charge cannot establish the substantial truth of any published statement. Nebraska's truth defense requires more than the initiation of a proceeding terminated without consequence. Third, Defendant's own published statements confirm that he knew the Iowa proceedings were juvenile and that he could not access those records. His counsel's certification in Paragraph 58 is directly contradicted by Defendant's own words, in violation of FRCP 11(b)(3).

Taylor J. Wemhoff (Liberty Law Group) represents defendant.

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