Checking Overdraft -- I Move to Strike Your Motion to Strike My Motion!

In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.

Naturally, the plaintiffs have responded like all good plaintiffs should -- by aggressively attacking the very motion to reconsider and moving to strike the reconsideration motion as improper.

Turns out, however, that it may be improper to move to strike a motion to reconsider as being improper:

No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("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 . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.

I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.

And then come the reconsideration motions.

Welcome to federal court!

Amazing -- Motion for Reconsideration Actually Granted!

Reconsideration Granted

Wonders of wonders, miracles of miracles....


If you strictly abide by the standard for motions for reconsideration, they are pretty darn hard to prevail upon.

They also require more or less a confession of error of some kind by the court, again something federal judges don't tend to do all too often.

That's why this order from Judge Seitz granting in part a motion for reconsideration is fairly surprising, and indeed refreshing in some respects.

It's also interesting that Judge Seitz appears to disagree with Judge Cooke's reasoning in Grovenor House as to privity in the warranty context, though she mostly relies on the reconsideration standard for refusing to follow this precedent.

"I Said Good Day, Sir!"

Dont Waste My Time Again

Do any of you come here for legal analysis and opinion?

Judging from your search terms, let's leave that question unanswered.

But there are a dogged few, a ragtag bunch of judges, judicial staff, ham-and-schleppers and BigFirmers who -- in between copious sessions browsing for cat piano mashups and free x-rated content (sometimes simultaneously) -- actually come here to learn something.

So here's a lesson -- don't waste the Court's time raising new arguments you should have thought about the first time.

For example, if you're the plaintiff and you've just been hit by defendants for a big fee award under an offer of judgment theory, and the Court has "thoroughly and painstakingly" reviewed your arguments (not to pat oneself on the back), don't go back and try to argue entitlement in a motion for reconsideration you big fat dummy:

After this Court thoroughly and painstakingly reviewed the arguments raised by Plaintiff in opposition to the motion, which resulted in a material reduction of the fees and costs requested by Defendant, Plaintiff (still unsatisfied) seeks to start over and have the Court review the matter anew with arguments that could have, but were not, raised in a timely fashion in opposition to the original motion.

Oy, not good so far....

Having obtained only limited success through its original arguments in opposition to the motion for fees, Plaintiff – without any explanation or suggestion why any entitlement arguments could not have been raised earlier – simply asks that the Court exercise its discretion to reopen the matter and consider new legal theories. But the Motion presents no persuasive factual or legal basis for the Court to do so under the circumstances. To paraphrase Judge Birch, this too constitutes a second – but untimely – bite at the apple. The Court will not entertain these untimely arguments now and rests this Order entirely on that procedural basis.

 I said Good Day Sir!

I agree with this as a policy matter.

Also, why would you not raise issues regarding entitlement (the form is bad, the release is bad, not everyone named etc.) as a threshold issue?

The only wrinkle is that the area of law -- offers of judgment/proposals for settlement under Fla. Stat. § 768.79 -- is wildly, hopelessly screwed up, and has been for decades.  There are badly reasoned decisions, conflicting statutes, amendments to statutes, cases that deal with older versions of statutes, you name it.

Good thing our friends in Tallahassee are working hard on cleaning it all up!