Gardner v. New Mexico Board of Dental Health et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER,
Plaintiff,
v. 	No. 1:25-cv-00421-SMD-SCY
NEW MEXICO BOARD OF DENTAL HEALTH, et al.,
Defendants.
ORDER DENYING MOTIONS TO STRIKE
There are three motions to strike before the Court. 	See Plaintiff’s Motion to Strike,
Doc. 35, filed July 13, 2025 (“Plaintiff’s Motion”); Defendant New Mexico Department of
Justice’s Motion to Strike Improper Filings, Doc. 38, filed July 15, 2025 (“NMDOJ’s Motion”);
Plaintiff’s Second Motion to Strike, Doc. 54, filed September 10, 2025.
“[D]istrict courts are afforded great discretion regarding control of the docket and
parties.” United States v. Orozco, 916 F.3d 919, 925 (10th Cir. 2019) (quotations
omitted). Federal Rule of Civil Procedure 12(f) governs what a “court may strike
from a pleading.” Ysais v. N.M. Judicial Standard Com'n, 616 F. Supp. 2d 1176,
1184 (D.N.M. 2009) (quotations omitted); see Fed. R. Civ. P. 12(f) (“The court may
strike from a pleading ... any redundant, immaterial, impertinent, or scandalous
matter ... on its own.”). “Generally, ... motions, briefs, and memoranda may not be
attacked by a motion to strike.” Ysais, 616 F. Supp. 2d at 1184.
“The exception to this principle is that a [c]ourt may choose to strike a filing that is
not allowed by local rule ....” Id. (quotations omitted); see Bustillo v. Hawk, 44 F.
App'x 396, 400-01 (10th Cir. 2002) (unpublished) (upholding district court's
decision to strike filing based on local rules); In re Hopkins, No. 98-1186, 1998 WL
704710, at *3 n.6 (10th Cir. Oct. 5, 1998) (unpublished) (noting “it was well within
the discretion of the district court to strike” briefs that did not comply with local
rules).
When courts strike a filing as improperly filed, it becomes “a nullity.” Synnestvedt
v. Astrue, No. 09-443, 2010 WL 125649, *1 n.3 (W.D. Okla. Jan. 7, 2010); see
Habyawmana v. Kagame, No. 10-437, 2011 WL 13113322, *1 n.1 (W.D. Okla.
2011) (noting an “improperly filed” motion “is, therefore, treated as a legal
nullity”).
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Bunn v. Perdue, 966 F.3d 1094, 1099 (10th Cir. 2020) (footnote omitted).
Plaintiff’s Motion to Strike does not expressly identify the document that Plaintiff asks the
Court to strike but it appears that the Motion is directed towards the New Mexico Board of Dental
Health Defendants’ Motion to Dismiss, Doc. 6, filed May 9, 2025. Plaintiff states:
The Defendant’s first motion to dismiss is concerning improper/lack of service only
to the NM board of Dental Health Defendants. Plaintiff asserts he has timely
responded to the Defendant’s motion to dismiss due to lack of service . . . this
motion to Strike should GRANTED as the issue concerning the lack of Service has
been cured and should be stricken from any hearing as the Plaintiff has effectuated
service to the Defendants with a summons and the original complaint.
[sic] Plaintiff’s Motion at 1-2. Plaintiff’s Second Motion to Strike is essentially identical to his
first Motion to Strike.
The Court denies Plaintiff’s Motions to Strike because “[g]enerally, ... motions, briefs, and
memoranda may not be attacked by a motion to strike” and Plaintiff has not cited any legal
authority supporting his motion to strike the New Mexico Dental Board Defendants’ motion to
dismiss. Bunn v. Perdue, 966 F.3d 1094, 1099 (10th Cir. 2020); D.N.M.LR-Civ. 7.3(a) (“A motion
… must cite authority in support of the legal positions advanced”).
The NMDOJ seeks to strike:
(i) 	Plaintiff’s Amended Complaint, Doc. 28, filed June 25, 2025, because Plaintiff “has
not obtained leave to file it and, without leave, it is impertinent and immaterial and
creates confusion of the record.” NMDOJ’s Motion at 3.
(ii) 	Plaintiff’s [Notice of] Completion of Briefing on Plaintiff’s Default Motion,
Doc. 34, filed July 13, 2025, because “its only substance consists of easily
disproved misrepresentation.” NMDOJ’s Motion at 4.
(iii) 	Plaintiff’s Motion to Strike, Doc. 35, filed July 13, 2025, because it “is, in
substance, an improperly filed Sur-Reply, and should be stricken as it only provides
immaterial and impertinent information.” NMDOJ’s Motion at 5.
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(iv) 	Plaintiff’s Notice of Completion of Briefing Clarification, Doc. 36, filed July 14,
2025, because “it provides misrepresentations to the Court that confuse the issues
and are immaterial and impertinent to the matter.” NMDOJ’s Motion at 6.
The Court denies NMDOJ’s Motion to strike Plaintiff’s Amended Complaint because the
Court is addressing the Amended Complaint in a separate Order. 	The Court denies NMDOJ’s
Motion to strike Plaintiff’s first motion to strike because the Court is denying Plaintiff’s first
motion to strike for the reasons stated above and because motions generally may not be attacked
by a motion to strike. See Bunn v. Perdue, 966 F.3d 1094, 1099 (10th Cir. 2020). The Court denies
NMDOJ’s Motion to strike Plaintiff’s two Notices of Completion of Briefing because briefs and
memoranda generally may not be attacked by a motion to strike. See id.
IT IS ORDERED that:
(i) 	Plaintiff’s Motion to Strike, Doc. 35, filed July 13, 2025, is DENIED.
(ii) 	Plaintiff’s Second Motion to Strike, Doc. 54, filed September 10, 2025, is
DENIED.
(iii) 	Defendant New Mexico Department of Justice’s Motion to Strike Improper Filings,
Doc. 38, filed July 15, 2025, is DENIED.
_________________________________
UNITED STATES DISTRICT JUDGE
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