Upon a motion made by a party before responding to a pleading or, if no responsive pleading is permitted, upon motion by a party within twenty days after service of the pleading upon the party or upon the court’s own initiative at any time, a court may Order stricken from the pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.106
A matter is immaterial if it has no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material. A matter is impertinent if it contains statements that do not pertain, and are not necessary, to the issues in question. A matter is scandalous if it improperly casts a cruelly derogatory light on someone, and not merely an unflattering light, most typically on a party to the action.106.1
The decision to grant or deny a motion to strike is discretionary with the court.107 Motions to strike, being dilatory in nature, are not favored and are granted sparingly and then only if clearly warranted.108 A motion to strike will be denied unless the challenged allegations have no possible relation to the subject matter of the case.108.1 Any doubt will be resolved in favor of denying the motion. In deciding the motion, the court must focus on two elements. The first is whether the challenged averment is relevant to an issue in the case, is directly related or in reply to the matter which is pleaded and is offered in support of a direct issue. The second is whether the averment is unduly prejudicial.109
The purpose of a motion to strike is to avoid prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety. If the document will not be submitted to a jury, or if the case will be tried without a jury, there is less need to strike allegations.109.1
The degree of relevance that is necessary to overcome a motion to strike is low. A matter will not be stricken from the pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation. If there is any doubt as to whether under any contingency the matter may raise an issue, the motion to strike should be denied.109.2
Mere disagreement with the accuracy of the allegations is not grounds for a motion to strike.109.3
106. Ch. Ct. R. 12(f); Super. Ct. Civ. R. 12(f); Comm. Pls. Ct. Civ. R. 12(f); Fam. Ct. Civ. R. 12(l). See also 395 Associates, LLC v. New Castle Couty, No. 05A-01-013-JRJ (Del. Super. Nov. 28, 2005) (Court striking sections of reply brief sua sponte).
106.1. 395 Associates, LLC v. New Castle Couty, No. 05A-01-013-JRJ (Del. Super. Nov. 28, 2005); Bear Stearns Mortgage Funding Trust 2007-AR2 v. EMC Mortgage LLC, C.A. No. 8681-CS, slip op. at 5 (Del. Ch. Jan. 17, 2013); Quereguan v. New Castle County, C.A. No. 20298-VCP, Parsons, V.C. (Del. Ch. June 18, 2010); Salem Church (Delaware) Associates v. New Castle County, C.A. No. 20305-NC, slip op. at 6-7, Noble, V.C. (Del. Ch. May 6, 2004).
107. Topps Chewing Gum, Inc. v. Fleer Corp., C.A. No. 6781, slip op. at 3, Hartnett, V.C. (Del. Ch. Dec. 2, 1986).
108. Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 660 (Del. Super. 1985); Phillips v. Delaware Power & Light Co., 194 A.2d 690, 696 (Del. Super. 1963); Quereguan v. New Castle County, C.A. No. 20298-VCP, Parsons, V.C. (Del. Ch. June 18, 2010); 395 Associates, LLC v. New Castle County, C.A. No. 05A-01-013 JRJ, slip op. at 3, Jurden, J. (Del. Super. Nov. 28, 2005); Goodrich v. E.F. Hutton Group, Inc., C.A. No. 8279, slip op. at 1, Hartnett, V.C. (Del. Ch. Mar. 3, 1993); Mills v. Gosling Creek, Inc., C.A. No. 92C-12-006, slip op. at 3, Graves, J. (Del. Super. Oct. 6, 1993); Shafer v. Davis, C.A. No. 89C-MY2O, slip op. at 9-10, Lee, 3. (Del. Super. Dec. 2, 1986).
108.1. Bear Stearns Mortgage Funding Trust 2007-AR2 v. EMC Mortgage LLC, C.A. No. 8681-CS, slip op. at 3-4 (Del. Ch. Jan. 17, 2013).
109. Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 660 (Del. Super. 1985); Mills v. Gosling Creek, Inc., C.A. No. 92C-12-006, slip op. at 3, Graves, J. (Del. Super. Oct. 6, 1993); Shaffer v. Davis, C.A. No. 89C-MY2O, slip op. at 9-10, Lee, 3. (Del. Super. Dec. 2, 1986).
109.1 Salem Church (Delaware) Associates v. New Castle County, C.A. No. 20305-NC, slip op. at 9 n.23, Noble, V.C. (Del. Ch. May 6, 2004).
109.2. 395 Associates, LLC v. New Castle Couty, No. 05A-01-013-JRJ (Del. Super. Nov. 28, 2005); Quereguan v. New Castle County, C.A. No. 20298-VCP, Parsons, V.C. (Del. Ch. June 18, 2010); Topps Chewing Gum, Inc. v. Fleer Corp., C.A. No. 6781, slip op. at 3, Hartnett, V.C. (Del. Ch. Dec. 2, 1986).
109.3 McCarther v. Tsapenko, C.A. No. 4176-CC, Chandler, C. (Del. Ch. Apr. 3, 2009).
© 2014 David L. Finger