It is a view held by many lawyers. Some lawyers who hold this view represent Defendants, some represent Plaintiffs. Those who hold the view tend to be convinced of its validity even when it does not produce the desired results. The view is that even if a motion is destined to be denied, sometimes for various reasons it "needs to be filed." One reason is that in the act of denial the Judge who tries your case must consider the motion. As she or he considers the motion in question, you as counsel have the opportunity to "educate" her or him on some issue important to your client's case.
This view seems to have been one factor in Download Lane v. Endurance Am. Specialty Ins. Co. (W.D.N.C. Case No. 3.10cv.401, Order Filed by Keesler, USMJ on April 8, 2011) PUBLIC ACCESS, also published as 2011 WL 1343201 (W.D.N.C. April 8, 2011)(authorized subscription required to access Westlaw). In that case, a Policyholder under an unspecified Liability Insurance Policy sued a Liability Insurance Company for alleged Bad Faith, among other things. The Plaintiff-Policyholder is Nations Title Agency of the Carolinas, Inc., which suffered a Judgment against it in an underlying case. Defendant Endurance American Specialty Insurance Company's attorneys filed a motion to strike portions of Plaintiff's First Amended Complaint which alleged claims of breach of insurance contract, tortious breach-bad faith refusal to settle, and unfair and deceptive trade practices. The First Amended Complaint also contained a prayer for punitive damages or treble damages, apparently in the alternative. Lane v. Endurance American Specialty Insurance Co., 2011 WL 1343201 at *1.
The gist of the motion to strike was that certain allegations in the First Amended Complaint violated Federal Rule of Evidence 408 which bars the admission of evidence concerning "settlement negotiations". Endurance's attorneys tried to make it clear that they were not attacking evidence of settlement negotiations in the underlying case, but only the question of admissibility of "settlement negotiations" under the Rule in this case, the bad faith case. The crux of their argument, in turn, was that the Court could not, should not permit the Plaintiff to introduce evidence of "litigation conduct" which takes place during the litigation of the bad faith case. Id. at *3.
If one reason for this motion to strike was to "educate the Trial Judge" on an unsettled point of law in that Court, filing a motion to strike may have foreordained the result from the start. This motion to strike was assigned for disposition to the United States Magistrate Judge. The Trial Judge may never see it.
Second, the chosen vehicle -- a motion to strike under Federal Rule of Civil Procedure 12(f) -- was admittedly unfamiliar to the Magistrate Judge in this case. See id. at *3 ("This court has rarely been called upon to interpret Rule 12(f) ....").
Third, the standard for filing and disposition of a motion to strike under Fed. R. Civ. P. 12(f) is written in the Rule. A motion to strike may be filed to address, in part here pertinent, "any redundant, immaterial, impertinent, or scandalous matter." If the motion to strike is granted, the matter is stricken from the case. In this case, however, after filing the motion to strike, according to the Magistrate Judge, there was no argument that the standard applied by the Court was met in this case. "Notably, Defendant has not argued that the text it wishes to strike is redundant, impertinent, or scandalous pursuant to Fed.R.Civ.P. 12(f)." Id. at *3.
Rather, Endurance's lawyers argued that "evidence of its conduct in this action" should not be admitted into evidence. This is not the purpose of a motion to strike, the Court held. "The issue before the Court on a Rule 12(f) motion is not whether evidence is admissible, but whether it is immaterial, impertinent, and scandalous." Id.
In conclusion, the Magistrate Judge denied the motion to strike in this case. Unsettled questions of evidence law would have to remain unsettled, for the time being. "In short, neither party has cited caselaw that squarely addresses the issue before the Court. Moreover, the undersigned is not persuaded that Defendant has satisfied its burden .... The better course at this stage is to leave the Complaint as is, without prejudice to Defendant to raise its arguments in a later dispositive motion, or perhaps at an evidentiary hearing." Id. at *5.
A post on Insurance Claims And Issues Weblog addresses the same issue apparently arising in a different case on the part of plaintiff-policyholder attorneys in a post on Monday, April 18, 2011.
The Courts' admission of evidence of litigation conduct in Bad Faith cases is examined in Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" ยง9:6 (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement and Third Edition in process).
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