The Lawletter Vol 35, No 1, January 3, 2011
Charlene Hicks—Senior Attorney, Civil Procedure
The tactics a defense attorney employs in almost any type of civil case often prove to be key in obtaining a favorable outcome for the client. In order to obtain the greatest strategic advantage possible, it is important that counsel study the constantly shifting interplay amongst the various Rules of Civil Procedure that potentially could be invoked.
Rule 12(f) of the Federal Rules of Civil Procedure authorizes a trial court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." In a recent case of first impression, Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010), the defendant corporation, Handi-Craft, unsuccessfully invoked this Rule in an effort to obtain the dismissal of the plaintiff corporation's damages claim. In that case, the plaintiff, Whittlestone, filed a breach-of-contract action alleging that Handi-Craft had improperly terminated the parties' 20-year agreement after only two years. The complaint prayed for relief in the form of lost profits and consequential damages. In response, Handi-Craft filed a Rule 12(f) motion to strike the damages portion of the complaint on the ground that the parties' contract expressly precluded the relief Whittlestone sought. The district court granted Handi-Craft's motion and struck the claims.
Holding that Rule 12(f) "does not authorize a district court to strike a claim for damages on the ground that such damages are precluded as a matter of law," the Ninth Circuit reversed. Id. at 971. In reaching this decision, the court first analyzed whether Whittlestone's claim for lost profits and consequential damages fell within any of the classifications covered by Rule 12(f), to wit, "(1) an insufficient defense; (2) [a] redundant [matter]; (3) [an] immaterial [matter]; (4) [an] impertinent [matter]; or (5) [a] scandalous [matter]." Id. at 973–74. A claim for damages "is clearly not an insufficient defense." Id. at 974. "Second, the claim for damages could not be redundant, as it does not appear anywhere else in the complaint. Third, the claim for damages is not immaterial, because whether these damages are recoverable relates directly to the plaintiff's underlying claim for relief." Id. Fourth, the damages claim "is not impertinent, because whether these damages are recoverable relates to the harm being alleged." Id. Fifth, the damages claim in itself could not be classified as scandalous. Id.
In addition, by arguing that Whittlestone's damages claim should be stricken because the recovery of such damages was precluded by the contract as a matter of law, Handi-Craft was effectively using a Rule 12(f) motion to procure the partial dismissal of the complaint. Id. The Ninth Circuit ruled that this maneuver was "better suited for a Rule 12(b)(6) motion [to dismiss] or a Rule 56 motion [for summary judgment], not a Rule 12(f) motion [to strike]." Id. If Rule 12(f) were interpreted "in a manner that allowed litigants to use it as a means to dismiss some or all of a pleading," redundancies would be created within the Federal Rules of Civil Procedure "because a Rule 12(b)(6) motion (or a motion for summary judgment at a later stage of the proceedings) already serves such a purpose." Id.
Although the creative use of the Rules may sometimes provide a party with a tactical advantage, Whittlestone sounds a cautionary note of warning: A party who attempts to obtain the dismissal of a case by invoking another Rule, such as Rule 12(f), as the functional equivalent of a Rule 12(b)(6) motion to dismiss may be acting at his or her peril.