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USA v. Berryman

United States District Court, D. Colorado

February 24, 2014

USA, Plaintiff,
v.
NANCY D. BERRYMAN, THE TEMPLE OF THE UNVEILED GOD, and THE OFFICE OF THE OVERSEER OF DEDICATION TO ENLIGHTENMENT, and her successors, a corporation sole, Defendants.

ORDER

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Defendant Nancy D. Berryman's ("Berryman") Objection to, and Motion to Strike United States' Renewed Motion for Summary Judgment Against Nancy D. Berryman [#90] (the "Motion"). Plaintiff filed a Response [#93] in opposition to the Motion. Defendant Berryman did not file a Reply.

Defendant Berryman, who proceeds in this matter as a pro se litigant, does not provide any legal authority by which she seeks to strike Plaintiff's Renewed Motion for Summary Judgment [#85]. She spends the majority of the Motion instead arguing why summary judgment should not be entered in Plaintiff's favor.[1] If Defendant Berryman seeks to strike Plaintiff's Renewed Motion for Summary Judgment pursuant to Fed.R.Civ.P. 12(f), the Court notes that Rule 12(f) only permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Pleadings, as defined by Rule 7(a), are different from "motions and other papers." Pleadings include a complaint, an answer to a complaint, an answer to a counterclaim designated as a counterclaim, an answer to a counterclaim, a third-party complaint, an answer to a third-party complaint, and, if court-ordered, a reply to an answer. Fed.R.Civ.P. 7(a). "[T]here is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda." Searcy v. Soc. Sec. Admin. , No. 91-4181, 1992 WL 43490, at *2 (10th Cir. Mar. 2, 1992). See also 2 James Wm. Moore et. al., Moore's Federal Practice ยง 12.37[2] (3d ed. 2004) ("Only material included in a pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions, briefs, or memoranda, objections, or affidavits may not be attacked by the motion to strike.").

The Renewed Motion for Summary Judgment to which Defendant Berryman's Motion is directed is not a "pleading" as defined by Rule 7(a) of the Federal Rules of Civil Procedure. The Court finds that Defendant Berryman may therefore not attack Plaintiff's Renewed Motion for Summary Judgment through a motion to strike. See Trujillo v. Bd. of Educ. of Albuquerque Pub. Schs. , 230 F.R.D. 657, 660 (D.N.M. 2005). Accordingly, of that filing.

IT IS HEREBY ORDERED that the Motion [#90] is DENIED.[2]


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