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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kirby Developments LLC, 

Plaintiff, Case No. 2:18-cv-500

v. Judge Sarah D. Morrison

Magistrate Judge Kimberly A. Jolson

XPO Global Forwarding, Inc., et al., 

Defendants.

OPINION & ORDER

Defendants/Cross-claim Plaintiffs XPO Global Forwarding, Inc. and XPO Logistics, Inc. 

(collectively “XPO”) presently move to dismiss and strike portions of Defendant Afif Baltagi’s 

Answer (ECF No. 150) to XPO’s cross-claim against him pursuant to Fed. Rs. Civ. P. 12(b)(6)

and 12(f). (ECF No. 158.) The motion is unopposed.

Mr. Baltagi’s Answer relevantly provides:
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(ECF No. 150.) XPO first focuses on the section of the Answer demanding judgment “for 

compensatory damages against XPO on all causes of actions . . . .” Id. In particular, XPO states 

that if the Court interprets that language as asserting as a counterclaim for damages against XPO, 

then that counterclaim is subject to dismissal under Fed. R. Civ. P. 12(b)(6) because Baltagi fails 

to provide any facts to state a plausible claim for relief within his Answer. (ECF No. 158 at 3.) 

The Court need not engage in a Fed. R. Civ. P. 12(b)(6) analysis because the Court does 

not read Baltagi’s Answer to assert any claims. While recognizing the liberal construction 

afforded to pro se filings, the Court notes the absence of any specified legal basis for damages

within the Answer. See Allen v. Helton, No. 17-6011, 2018 U.S. App. LEXIS 21308, at *3 (6th 

Cir. July 31, 2018). This section of the motion is therefore MOOT.

Additionally, XPO seeks to strike paragraph five of the Answer, which provides that 

Baltagi has been damaged by “XPO’s false accusations, assumptions without proof beyond a 

reasonable doubt, and defamation of character that has caused [him his] reputation. . . .” (ECF 

No. 158 at 3) (quoting ECF No. 150). XPO does not contend that this language serves to assert a 

claim. Instead, XPO argues that the highlighted verbiage must be struck as “immaterial and 
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impertinent” pursuant to Fed. R. Civ. P. 12(f). Id. The rule permits the Court to “strike from a 

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 

matter.” Such motions serve to “‘avoid the expenditure of time and money that must arise from 

litigating spurious issues by dispensing with’ them early in the case.” Operating Eng’rs Local 

324 Health Care Plan v. G&W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (quoting 

Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986) (quotation and citation omitted).

“A motion to strike should be granted if ‘it appears to a certainty that plaintiffs would succeed 

despite any state of the facts which could be proved in support of the defense and are inferable 

from the pleadings.’” Operating Eng’rs Local 324 Health Care Plan v. G&W Constr. Co., 783 

F.3d 1045, 1050 (6th Cir. 2015) (quoting Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th 

Cir. 1991) (citations and internal quotation marks omitted)). Nevertheless, “[m]otions to strike 

are viewed with disfavor and are not frequently granted.” Operating Eng’rs Local 324, 783 F.3d 

at 1050.

The Court reaches the typical disposition here. That is, the Court DENIES the motion to 

strike because the quoted language is neither immaterial nor impertinent but rather serves as a 

denial of XPO’s cross-claims. Under these circumstances, the Court cannot conclude that “it 

appears to a certainty” that XPO would succeed under any facts proved in support of the defense 

that are inferable from the pleadings.

In conclusion, the Court holds that XPO’s Motion to Dismiss is MOOT and that XPO’s

Motion to Strike is DENIED. (ECF No. 158.) 
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IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE