United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiff's “Motion
to Strike ‘Defendant's Motion to Dismiss Complaint
and for Summary Judgment Pursuant to Fed. Civil Rule
12(d)' or, in the Alternative, Motion to Exclude Matters
Outside of the Pleadings” [DE 13], filed by Plaintiff
on September 6, 2016.
responded on September 19, 2016 [DE 17]. Plaintiff has not
replied, and the time to do so has passed.
sued Defendant in state court in July 2016, alleging various
violations of the Fair Debt Collection Practices Act.
Defendant removed the case to federal court.
deadline to respond to the complaint was September 2, 2016.
On that date, Defendant met his deadline by filing a
“Motion to Dismiss Complaint and for Summary Judgment
Pursuant to Fed. Civil Rule 12(d)” [DE 11].
now asks the Court to strike Defendant's motion.
Plaintiff says Defendant's motion: (1) violates Local
Rule 7-1 by being “two motions in one”; (2)
violates the Federal Rules of Civil Procedure by purporting
to allow Defendant to avoid filing a responsive pleading; and
(3) improperly presents matters that are not contained in
alternative, Plaintiff asks the Court simply to exclude the
outside matters presented in Defendant's motion.
The motion to strike
Federal Rules of Civil Procedure address striking pleadings
and parts of pleadings, not motions. See Fed. R.
Civ. P. 12(f) (“The court may strike from a pleading .
. .”); Centrifugal Acquisition Corp. v. Moon,
No. 09-327, 2010 U.S. Dist. LEXIS 7684, *3 (E.D. Wisc. Jan.
14, 2010) (“Motions to strike apply to pleadings, not
motions.”). Nonetheless, the Court will address the
issues Plaintiff has raised.
Local Rule 7-1
argues that Defendant's motion violates Local Rule
7-1(a), which requires motions to be filed separately. N.D.
Ind. L.R. 7-1(a). The Rule's only exception is that
“alternative” motions may be filed in a single
document, but Plaintiff says that Defendant has not filed
“alternative” motions because Defendant's
motion is styled as a “Motion to Dismiss Complaint
and for Summary Judgment, ” not a
“Motion to Dismiss Complaint or for Summary
Judgment” (emphasis added).
Federal Rule of Civil Procedure 12(d), which Defendant's
motion directly cites, expressly instructs the Court to treat
a Rule 12(b)(6) motion to dismiss as a Rule 56
motion for summary judgment if the motion presents matters
outside the pleadings and if the Court does not exclude those
matters. So while the motion's title uses the word
“and, ” the motion's substance requires the
Court to infer the word “or.” In other words, the
Court has a choice between excluding the outside matter and
treating the motion as a Rule 12(b)(6) motion to dismiss, or
considering the outside matter and treating the ...