W. Richard Lee United States Bankruptcy Judge
POSTED ON WEBSITE
ORDER DENYING ORAL MOTION TO STRIKE
Thomas O. Gillis, Esq., appeared as counsel for the debtors, Enrique Medina and Susana Medina. Michael H. Meyer, Esq., appeared in his capacity as the chapter 13 trustee.
On August 28, 2014, a hearing was held on this court's order to show cause why the debtors' attorney, Thomas O. Gillis, Esq. ("Gillis"), should not be sanctioned for, inter alia, violating Federal Rule of Bankruptcy Procedure 9011(b) (the "OSC"). Prior to the hearing, on August 25, the chapter 13 trustee, Michael H. Meyer, Esq. (the "Trustee") filed a response to Gillis' supplemental brief (ECF No. 76; the "Trustee's Response"). At the hearing, Gillis made an oral motion to strike the Trustee's Response (the "Motion to Strike"). For the reasons set forth below, the Motion to Strike will be denied.
The Motion to Strike was stated broadly. Without citing which specific portions of the Trustee's Response were offensive, Gillis took issue with the Trustee's comments regarding his ability to represent his clients and moved to strike the entire Response. The court has reviewed the Trustee's Response and identified only one sentence in the brief which appears to relate to Gillis' objection, it states:
Due to [counsel's] numerous filings and numerous cases currently pending and his failure to accurately represent the law and facts, the Trustee is concerned that even now Debtors' counsel is not knowledgeable enough in Chapter 13 to represent his clients.
Trustee's Resp. 4:6-8, Aug. 25, 2014, ECF No. 76.
In a supporting declaration, the Trustee made the statement:
I merely advised Mr. Gillis, that he did not understand how to read the information [in the Trustee's computer system] and that due to his incompetence I would be forced to rectify this matter.
Trustee Decl. 6:11-12, Aug. 25, 2014, ECF No. 77.
The court's authority to strike a pleading arises under Fed.R.Civ.P. 12(f)(made applicable here by Fed.R.Bankr.P. 7012) which states in pertinent part: "The court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) motions are generally viewed with disfavor, and are not ordinarily granted, because they are often used to delay, and because of the limited importance of the pleadings in federal practice. Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). A motion to strike should not be granted "unless it is clear that the matter to be stricken could have no possible bearing on the litigation." Lilley v. Charren, 936 F.Supp. 708, 713 (N.D. Cal. 1996) (citing Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991)).
Here, the court issued the OSC because Gillis had filed a motion seeking to judicially compel the Trustee to close a pending chapter 13 case before completion of the term stated in the confirmed plan. The court denied the motion and issued the OSC. The OSC necessarily questions Gillis' knowledge of the law and performance of his duty of due diligence under Rule 9011(b). At the hearing on the OSC, Gillis acknowledged that he was not familiar with the applicable Ninth Circuit authority upon which the motion to compel had been denied.
The Trustee's Response was filed at the court's invitation in a civil minute order issued on August 7, 2014 (setting a briefing schedule for both parties to respond to the OSC). The court views the above-referenced comments by the Trustee as mere expressions of the Trustee's experience, frustration (presumably from prior cases), and personal opinion. Both statements relate to the issue raised in the OSC, Gillis' knowledge of applicable chapter 13 law. The statement in the Trustee's Response falls within the scope of relevant argument. The "incompetence" statement in the Trustee's declaration is merely a restatement of what the Trustee communicated to Gillis. Both statements are relevant. However, the court is able to accept such statements for what they are, argument and opinion. Neither statement will influence the court's ability to rule on the OSC based on the record and the applicable law. The Trustee's comments are certainly not egregious enough to justify striking the entire Response. Based thereon,
IT IS HEREBY ORDERED that Gillis' Motion to Strike the entire Trustee's Response is DENIED.
Dated: September 15, 2014
/s/ W. Richard Lee
W. Richard Lee
United States Bankruptcy Judge