Motion to Strike in New Mexico

Background

Rule 12 of the New Mexico Rules of Civil Procedure concern motions to strike, and it provides, in pertinent part, as follows:

[T]he court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter. (Roberts v. Sparks (1982) 99 N.M. 152, 154 citing N.M.R.Civ.P. 12(f), N.M.S.A. 1978 [1980 Repl. Pamph.].)

“The New Mexico rule is an adaptation of federal rule 12. See F.R.Civ.P. 12(f), 28 U.S.C.A. Courts which have applied federal rule 12(f) have stated that motions to strike are not favored, and are infrequently granted.” (Roberts v. Sparks (1982) 99 N.M. 152, 154 citing, e.g., Croy v. Skinner (1976) 410 F. Supp. 117, 132.)

General Information for Complaints and Motions

As stated above, Rule 1-012(f) governs a Motion to strike and concerning the timing of the motion provides:

“Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.”

(Rupp v. Hurley (1999) 127 N.M. 222, 231 n.3 citing Rule 1-012(F).)

Standard of Review and Burdens of Proof

“Generally, a ruling upon a motion to strike out a pleading, or matter therein, is not appealable until after final judgment, unless the order on motion would practically dispose of the merits.” (Floyd v. Towndrow (1944) 48 N.M. 444, 446.)

The Court’s Decision

“[I]n Smith v. Hicks, 14 N.M. 560, 98 P. 138 (1908), the Supreme Court addressed a motion to strike a portion of the complaint. The motion was denied, and on appeal the court stated as follows:

‘There was no error committed in the overruling of this motion. But even if the court had erred in overruling the motion, a reversal of the judgment would not follow. A party has no absolute right to have his adversaries pleadings pruned to suit his fancy. A reviewing court will only interfere in such matters where it appears that the denial of a motion to correct a pleading was not only erroneous, but prejudicial to the substantial rights of the moving party.’” (Roberts v. Sparks (1982) 99 N.M. 152, 154 quoting id., 14 N.M. at 565 citing Lincoln Mortgage Trust Co. v. Hutchins (1898) 55 Neb. 158.)