Striking Out: District Of Arizona Finds Rule 11(f) Motion Inappropriate Vehicle For Evidentiary Objection

Federal Rule of Civil Procedure 11(f) provides that

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

So, let's say that a plaintiff includes factual allegations in a complaint which the defendant believes are based upon inadmissible evidence. Can the defendant move to strike these allegations under Rule 11(f)? According to the recent opinion of the United States District Court for the District of Arizona in TriQuint Semiconductor, Inc. v. Avago Technologies, Ltd., 2010 WL 3034880 (D. Ariz. 2010), the answer is "no."

In Avago, both TriQuint Semiconductor, Inc. and Avago  

had concerns about patent infringement and misappropriation of trade secrets....By spring of 2009, Plaintiff and Defendants entered into several discussions designed to settle the dispute....To facilitate these discussions, the parties entered into a Non-Disclosure Agreement ("NDA")....The NDA required both parties to not reveal any of the information obtained during the settlement discussions to third parties.

These discussions, however, were ineffective, and TriQuint later filed a complaint against Avago for patent infringement.

On July 23, 2009, Plaintiff filed a complaint against Defendants for patent infringement. Avago thereafter, inter alia, moved to strike paragraphs 45-49 of TriQuint's proposed amended complaint under Federal Rule of Civil Procedure 11(f) because they were based upon events occurred during settlement negotiations and evidence relating to such negotiations is inadmissible under Federal Rule of Evidence 408.

The United States District Court for the District of Arizona, however, denied this motion, finding that "Rule 12(f) governs striking material from pleadings, not evidence." Accordingly,

Disputes over Rule 408 should be resolved as evidentiary matters with motions in limine rather than prematurely in Rule 12(f) motions. Peace Software, Inc. v. Hawaiian Elec. Co., Inc., 2009 WL 3923350, *8-9 (D.Haw.2009) (noting that the court typically reviews only the face of the complaint to determine validity of Rule 12(f) motions and declining to strike allegations of a complaint under Rule 408 and an alleged NDA); see BPI Energy, Inc. v. IEC, No. CV-09-00408, 2007 WL 3355363, * 1 (S.D.Ill.2007) (denying motion to strike under a NDA and Rule 408, and holding “[t]he Second Amended Complaint is not evidence; rather it sets forth allegations. Therefore, on its face, Rule 408 is not applicable at this juncture.”); Steak Umm Co. v. Steak ‘em UP, Inc., No. CV-09-2857, 2009 WL 3540786, *3 (E.D.Pa.2009) (“[Rule 408] is a rule of evidence and does not govern pleadings;” denying motion where reference to settlement discussions may be potentially relevant).

-CM