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Last updated July 5, 2009

F.R.C.P. 12(f) Motion to Strike

FRCP stands for the Federal Rules of Civil Procedure. We mention them in your Set Up procedure.. If you haven't downloaded them, do so.

Get real familiar with FRCP 12(f). It can help you when you don't expect it. FRCP 12(f) allows a plaintiff or defendant to move to strike from a pleading "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" prior to responding to a pleading, or if no responsive pleading is permitted, within 20 days after service of the pleading.

In almost every federal jurisdiction, before you file any motion with the court you must first confer with the othr party, or their attorney if they have one, before filing the motion. See your local rules, usually Rule 7.1 or there about. The purpose of this is to streamline the paperwork and avoid delays. The exceptions to this rule are usually motions filed under FRCP 12 and FRCP 56.

Under FRCP 12(f), before answering a complaint or before responding to a motion that has been filed you can file a motion to strike:

from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Say the other side submits an affidavit that is unsigned. You have enter a motion to have it stricken.


For example, the local rules for the United States Court Tenth District Denver Colorado state the following:

III. PLEADINGS AND MOTIONS

D.C.COLO.LCivR 7.1
MOTIONS

A. Duty to Confer. The court will not consider any motion, other than a motion under Fed.R. Civ. P. 12 or 56, unless counsel for the moving party or a pro se party, before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel or a pro se party to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule.

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District, which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here. These pages are not a complete analysis of everything that can happen. These are intended a guide and starting point. Always consult competent legal help.

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