United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
District filed this suit to appeal a 2013 due process final
order. Presently before the court is Plaintiff Forest Grove
School District's (the “District”) motion to
strike all arguments by Defendant Student related to the
issue of attorney's fees for that due process hearing,
asserting that those arguments are irrelevant to this case,
which relates to the merits of the District's appeal.
Student opposes the motion to strike, arguing that the issue
of attorney's fees was properly raised in this case. The
court grants the motion to strike.
March 5, 2013, Student filed a request for a due process
hearing with the Oregon Department of Education, alleging the
District violated the Individuals with Disabilities Education
Act (“IDEA”). (Compl., Ex. 1 at 1.) Following a
hearing, an administrative law judge (“ALJ”)
issued a final order, finding that the District had violated
the IDEA by denying the Student educational opportunities,
denying Student's parents a meaningful opportunity to
participate in Student's education, and failing to
provide Student with a free appropriate public education from
2011-2013. (Id. at 12.)
March 18, 2014, the District filed the instant suit (the
“14-444 Case”) to appeal the ALJ's decision,
challenging the ALJ's fact-finding and legal analysis,
and asking the court to reverse and vacate the remedy.
(Id. at 6-7.) On the same day, Student
simultaneously filed a separate complaint (the “14-445
Case”), seeking attorney's fees she incurred in
pursuing that complaint and the underlying due process
hearing. (No. 3:14-cv-00445-AC, Compl., ECF No. 1 at 12.)
Student filed an answer and cross-appeal in the 14-444 Case,
seeking to reverse specific sections of the ALJ's opinion
and an award of additional remedies, including attorney's
fees for the underlying due process proceeding. (No. 14-444,
Answer, ECF No. 3 ¶¶ 21-28.)
August 21, 2014, the court stayed all proceedings in the
14-444 Case pending a decision by the Ninth Circuit Court of
Appeals in a separate but factually related matter, and
ordered the parties to file ongoing joint status reports.
(No. 14-444, ECF No. 13.) On February 1, 2017, the parties
filed a joint status report (“February Status
Report”) stating, “No. 3:14-cv-00444-AC[:] The
parties agree that the only issue remaining is the amount of
attorneys' fees and costs due to Student . . . . No.
3:14-cv-00445[:] The parties agree that the only issue
remaining is the amount of attorneys' fees and costs due
to Student.” (No. 14-444, Joint Status Report, ECF No.
38 at 23.)
March 7, 2017, the parties filed another joint status report
(“March Status Report”), stating, “No.
3:14-cv-00444-AC[:] The parties agree that this case remains
to be decided on the merits” and, accordingly, they
proposed a briefing schedule for the case, and “No.
3:14-cv-00445[:] The parties agree that until No.
3:14-cv-00444 is decided on the merits, No. 3:14-cv-00445,
which involves only the question of attorney's fees and
costs, cannot be decided by this Court.” (No. 14-444,
Joint Status Report, ECF No. 44 at 2-3.)
accordance with the March Status Report, on March 7, 2017,
this court adopted the briefing schedule proposed by the
parties for deciding the 14-444 Case on the merits and stayed
further proceedings in the 14-445 Case pending resolution of
the former. (No. 14-444, Minute Order, ECF No. 44.)
District filed its opening brief on the merits of the 14-444
Case on April 18, 2017, and did not mention attorney's
fees. (No. 14-444, Pl.'s Opening Brief, ECF No. 46.)
Student responded, raising both the substantive merits of the
appeal and the issue of attorney's fees. (No. 14-444,
Def.'s Response Brief, ECF No. 51.)
August 23, 2017, the District moved to strike all arguments
related to attorney's fees in Student's response
brief, arguing that those arguments are improper in the
14-444 Case. (No. 14-444, Pl.'s Mot. to Strike, ECF No.
55 (“Motion to Strike”).)
decision to strike material from the pleadings is vested in
the sound discretion of the trial court. Nurse v. United
States, 226 F.3d 996, 1000 (9th Cir. 2000). Under
Federal Rule of Civil Procedure (“Rule”) 12(f), a
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). By its express
language, Rule 12(f) applies only to material contained in a
“pleading.” See Sidney-Vinstein v. A.H.
Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)
(“only pleadings are subject to motions to
strike”); Sokoli, 2015 WL 7720466, at *3 (D.
Idaho Nov. 27, 2015) (“Rule 12(f) allows a motion to
strike a pleading, not a motion. A motion is not a
pleading.”). Rule 7 defines “pleadings” as
a complaint or third-party complaint; an answer to a
complaint, a third-party complaint, a counterclaim, a
crossclaim, or a reply to an answer. Fed.R.Civ.P. 7(a)(1 -
7). Generally, therefore, motions, briefs, and memoranda may
not be attacked by a motion to strike. See Act Now to
Stop War & End Racism Coal. v. D.C., 286 F.R.D. 117,
125 (D.D.C. 2012), vacated sub nom. Act Now to Stop War
& End Racism Coal. & Muslim Am. Soc'y Freedom
Found. v. D.C., 846 F.3d 391 (D.C. Cir. 2017) (vacated
on other grounds) (“motions, affidavits, briefs, and
other documents outside of the pleadings are not subject to
Rule 12(f)”); VanDanacker v. Main Motor Sales
Co., 109 F.Supp.2d 1045, 1047 (D. Minn. 2000) (“a
Rule 12(f) motion to strike is not the proper avenue for
challenging plaintiffs' memorandum in opposition to the
motion for attorney fees”).
proper vehicle for striking material that is not part of the
pleadings is an evidentiary objection. Sokoli, 2015
WL 7720466, at *4; see also Natural Resources Defense
Council v. Kempthorne, 539 F.Supp.2d 1155, 1161 (E.D.
Cal. 2008) (“[A] motion to strike materials that are
not part of the pleadings may be regarded as an invitation by
the movant to consider whether [proffered material] may
properly be relied upon.” (citing U.S. v.
Crisp, 190 F.R.D. 546, 551 (E.D. Cal. 1999) (“[A]
motion to strike ...