A walk through the strike zone.

• Author: Spector, Joshua Byrne

"Every strike brings me closer to the next home run."--Babe Ruth

"Baseball is almost the only orderly thing in a very unorderly world. If you get three strikes, even the best lawyer in the world can't get you off."--Bill Veeck

A clever battery of pitches will retire a side. Reading the batters and knowing their strengths and weaknesses can be every bit as important to a defense as a pitcher's strength of arm. Armed with curveballs, fastballs, knuckleballs, and spitballs, pitchers have many ways to notch a strike. But poorly conceived sequences of pitches can undermine the overall defensive effort. Similarly, Florida law provides many different forms of strikes, and different ways to obtain orders striking material or pleadings. But just like a poorly calculated pitch invites a homerun, a poorly delivered or premature motion to strike can stunt a party's chances for victory. Confusion and conflation of the different bases and motions to strike can result in missed opportunities and mistakes.

This article surveys and distinguishes various motions to strike under the Florida Rules of Civil Procedure, explaining when to use each type, and movant's burden for each such motion. More particularly, this article first contrasts motions to strike matter from a pleading from motions to strike sham pleadings. The article then regards other motions to strike, including several of limited application under the Florida Rules of Civil Procedure.

Motion to Strike Redundant, Immaterial, Impertinent, or Scandalous Matter

The motion to strike redundant, immaterial, impertinent, or scandalous matter arises from Fla. R. Civ. P. 1.140(f) and deals with striking these four categories of material from pleadings. Specifically, the rule provides that "[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time." The motion applies to "any pleading," and is available to both claimants and defendants, with respect to all manner of complaints, answers, and replies. (1) The 1972 amendment to the rule made motions to strike legally insufficient defenses the province of subprovision 1.140(b). (2) The separation is appropriate as Rule 1.140(f) does not toll the time for pleading and can be made at any time, unlike the Rule 1.140(b) motion to strike a legally deficient defense. (3) Moreover, as described below, these different methods to strike have different standards corresponding to their different purposes. (4) In contrast to a Fla. R. Civ. P. 1.150 motion to strike a sham pleading, a Rule 1.140(f) motion does not require verification or an evidentiary hearing.

"Redundant, immaterial, and impertinent" are often lumped together in the caselaw. But some differentiation is possible. What is "redundant" can prove obvious in some cases, but Florida caselaw does not provide a clear definition of the term as used in this rule. Rule 1.110(b) calls for "a short and plain statement of the ultimate facts showing that the pleader is entitled to relief' from the plaintiff and a short and plain statement of the facts. A claimant should not over-reincorporate allegations. Pick and choose, and certainly do not incorporate preceding causes of action into subsequent, unrelated causes of action. In Varandoe v. Union Planters Mortg. Corp., 898 So. 2d 992 (Fla. 5th DCA 2005), the court considered a motion to strike redundant, immaterial matter, including surplus pleadings titled "Affidavit of Discharge," "Bill of Exchange," and "Bill of Acceptance," which the trial court had found "illogical, incomprehensible, and immaterial" to the issues. The appellate court agreed and affirmed the order striking the material under Rule 1.140(f). Similarly, in Buckner v. Lower Fla. Keys Hosp. Dist., 403 So. 2d 1025 (Fla. 3d DCA 1981), the court struck a prolix, fourth pleading, in part under Rule 1.140(f), as it had with conflated causes of action, excessive allegations and exhibits, and contained scandalous and impertinent material. Ostensibly, two claims could be redundant. But even when different claims could lead to the same, ultimate award, if the elements of proof are distinct, the claims are not necessarily redundant of one another. (5)

"Immaterial" means evidence "tending to prove some fact that is not properly at issue; lacking any logical connection with the consequential facts." (6) Similarly, "impertinent" matter has been defined as material in a pleading "that is not relevant to the action or defense." (7) Such matter might include superfluous exhibits such as newspaper articles or other material comprised of hearsay or statements by nonparties incorporated to bolster a party's allegations. A demand letter from counsel might not be immaterial as an exhibit to a pleading if that exhibit's contents or very existence is incorporated into the pleading in support of, or to stand for elements of a cause of action. (8) Whether an exhibit might prove admissible as evidence is an issue distinct and distinguishable from whether the exhibit and its contents are material or pertinent to the pleading. (9) In Scott v. City of Venice, 167 So. 654 (Fla. 1936), based on the 1931 Chancery Act, the Florida Supreme Court held that a 58-page exhibit--while potentially admissible as evidence--was not material and violated the rule requiring a statement of the claim in "as brief and succinct terms as reasonably practicable, and shall contain no unnecessary recitals of documents in haec verba, or other irrelevant, redundant, or impertinent matter not relevant to the suit, and that no papers shall be unnecessarily annexed as exhibits." (10) Those same pleading restrictions endure today in Rules 1.110 and 1.140(f).

Scandalous matter provides the most firm basis to move to strike under Rule 1.140(f). In Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125 (Fla. 4th DCA 2003), the court reviewed scandalous and immaterial allegations regarding a violent outburst by a city employee. Evaluating the city's motion to strike the allegations, the court looked for a "causal connection" between the plaintiff's whistleblower-claims on a city's discriminatory employment practices and the violent outburst. Finding none, the court affirmed the trial court's order striking any reference in the...