United States District Court, M.D. Pennsylvania
THOMAS THOMPSON, JR. Plaintiff,
HARLEY-DAVIDSON MOTOR CO., Defendant. THOMAS THOMPSON, JR. Plaintiff,
INTERNAT'L. ASSOC. OF MACHINISTS AND AEROSPACE WORKERS, Defendant.
C. CARLSON, UNITED STATES MAGISTRATE JUDGE
two actions involve separate removal petitions filed by two
different defendants named in a single state case brought by
the plaintiff. The removal petition filed by Defendant
Harley-Davidson, contained, inter alia, the
following averments regarding service of process:
7. The Pennsylvania Rules of Civil Procedure do not allow for
the service of original process by mail within the
Commonwealth. Pa. R.C.P. 400(a) (requiring service of
original process by sheriff).
8. Harley-Davidson preserves its right to raise all claims
and defenses, including the issue of improper service, at an
appropriate time. E.g., Greenberg v.
Giannini, 140 F.2d 550, 553 (2d Cir. 1944) (Learned
Hand, J.) (“When a defendant removes an action from a
state court in which he has been sued, he consents to nothing
and ‘waives' nothing . . . .”).
. . .
21. In accordance with 28 U.S.C. § 1448 and Fed.R.Civ.P.
81(c)(2)(B), unless Plaintiff requests a waiver of service,
Harley-Davidson will respond to the Complaint by answer or
motion within 21 days after being served with a summons under
plaintiff has moved to strike these paragraphs from this
removal petition, (Docs 2 and 4), arguing that these
averments are improper because service has been properly made
in this case. Harley-Davidson opposes these motions to
strike, which are now ripe for resolution.
reasons set forth below, we will deny this motion to strike
without prejudice to full consideration of the question of
sufficiency of service of process when and if Harley-Davidson
files a motion to dismiss on these grounds.
12(f) of the Federal Rules of Civil Procedure governs motions
to strike pleadings and provides, in part, that:
(f) Motion to Strike. The court may strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.
F. R.Civ. P., Rule 12(f).
rulings on motions to strike rest in the sound discretion of
the court, Von Bulow v. Von Bulow, 657 F.Supp. 1134,
1146 (S.D.N.Y. 1987), that discretion is guided by certain
basic principles. Because striking a pleading is viewed as a
drastic remedy, such motions are ''generally
disfavored.'' Kaiser Aluminum & Chemical
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1057 (C.A.La., 1982). As one court has aptly observed:
''striking a party's pleadings is an extreme
measure, and, as a result, . . . '[m]otions to strike
under Fed .R.Civ.P. 12(f) are viewed with disfavor and are
infrequently granted.' Lunsford v. United
States,570 F.2d 221, 229 (8th Cir.1977) (citing 5
Wright & Miller, Federal Practice and Procedure.
Civil' 1380 at 783 (1969)). See also, Resolution
Trust Corp. v. Gibson,829 F.Supp. 1103, 1106
(W.D.Mo.1993); 2 James Wm. Moore et al., Moore's
Federal Practice' 12.37 (3d ed. 2000).
''Stanbury Law Firm v. I.R.S., 221 F.3d
1059, 1063 (8th Cir. 2000). In practice, ...