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Thompson v. Harley-Davidson Motor Co.

United States District Court, M.D. Pennsylvania

August 6, 2019

THOMAS THOMPSON, JR. Plaintiff,
v.
HARLEY-DAVIDSON MOTOR CO., Defendant. THOMAS THOMPSON, JR. Plaintiff,
v.
INTERNAT'L. ASSOC. OF MACHINISTS AND AEROSPACE WORKERS, Defendant.

          Kane, Judge

          MEMORANDUM ORDER

          MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE

         These 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 Fed.R.Civ.P. 4.

         The 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.

         For the 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.

         II. Discussion

         Rule 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).

         While 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[1] (3d ed. 2000). ''Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000). In practice, ...


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