UNITED STATES DISTRICT COURT

NORTHER DISTRICT OF INDIANA

FORT WAYNE DIVISION

MARILYN K. LAHR, )

)

Plaintiff/Counter-Defendant, )

)

v. ) CASE NO. 1:15-cv-00106-JD-SLC

)

BRIGADOON FINANCIAL, INC., and )

R . BRUCE DYE, )

)

Defendants/Counter-Claimants. )

OPINION AND ORDER

Before the Court are two motions to strike (DE 19; DE 20) filed by Plaintiff Marilyn K.

Lahr pursuant to Rule 8(a)(2), (b)(1)(A), and (d)(1), and Rule 12(f) of the Federal Rules of Civil

Procedure, seeking to strike a portion of the Answer, Other Defenses, Counterclaims, and

Demand for Jury Trial (“Answer”) (DE 15) filed by Defendants Brigadoon Financial, Inc., and

R. Bruce Dye. Lahr’s first motion seeks to strike Defendants’ six-page Preliminary Statement

from the Answer on the basis that it is verbose and alleges immaterial, impertinent, and

scandalous matter. (DE 19). The second motion seeks to strike a paragraph in both the

Preliminary Statement and Counterclaim I for the reason that it improperly reveals details

concerning the parties’ confidential settlement negotiations. (DE 20). The motions are now ripe

for ruling. (DE 22; DE 24; DE 25; DE 26). 

For the following reasons, Lahr’s motions to strike will both be DENIED. 

A. Factual and Procedural Background

On May 1, 2015, Lahr filed a 43-page complaint against Defendants, alleging a claim of

assault and battery against Dye in Count I; claims of negligent supervision and training,
negligent retention, breach of contract, sexual harassment, and sexual retaliation against

Brigadoon in Counts II through VI; and intentional infliction of emotional distress against both

Dye and Brigadoon in Count VII. (DE 1). On July 27, 2015, Defendants filed a 66-page

Answer, containing the six-page Preliminary Statement at the outset.1

 (DE 15). In Counterclaim

1, Dye and Brigadoon advance an abuse of process claim against Lahr, and in Counterclaim 2,

Dye sues Lahr for breach of contract claim. (DE 15 at 63-65). That same day, Lahr filed a

motion to dismiss Defendants’ abuse of process counterclaim (DE 18), which remains pending,

together with the two instant motions to strike (DE 19; DE 20).

B. Applicable Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and

plain statement of the claim showing that the pleader is entitled to relief[,]” and Rule 8(b)(1)(A)

provides that in responding to a pleading, a party must “state in short and plain terms its

defenses to each claim asserted against it[.]” In general, “[e]ach allegation must be simple,

concise, and direct.” Fed. R. Civ. P. 8(d)(1). 

Federal Rule of Civil Procedure 12(f) states that the Court “may strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 

“Generally speaking, motions to strike portions of pleadings are disfavored as they consume

scarce judicial resources and may be used for dilatory purposes.” Silicon Graphics, Inc. v. ATI

Techs. ULC, No. 06-C-611-C, 2007 WL 5312633, at *1 (W.D. Wis. Mar. 12, 2007) (citing

Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006); Heller Fin., Inc.

1 Local Rule 10-1 requires that a responsive pleading “restate verbatim the paragraphs from the pleading

they respond to . . . .” N.D. Ind. L.R. 10-1(a)(1). Therefore, much of the length of Defendants’ Answer is consumed

with restating the lengthy allegations in Lahr’s complaint. 

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v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). Thus, motions to strike

pleadings “will generally be denied unless the portion of the pleading at issue is prejudicial.” 

U.S. Liab. Ins. Co. v. Bryant, No. 3:10-cv-129, 2011 WL 221662, at *1 (S.D. Ill. Jan. 21, 2011)

(citing Heller, 883 F.2d at 1294; Tektel, Inc. v. Maier, 813 F. Supp. 1331, 1334 (N.D. Ill. 1992)). 

The decision whether to strike material under Rule 12(f) is within the discretion of the district

court. Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir.

2009); Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). 

C. Analysis

1. Lahr’s Motion to Strike the Preliminary Statement in its Entirety

Lahr’s first motion seeks to strike Defendants’ six-page Preliminary Statement in its

entirety for the reason that it is verbose and does not conform with Rule 8, which provides that a

pleading must consist of a short and plain statement of the claim or defense and be simple,

concise, and direct. See Fed. R. Civ. P. 8(a)(2), b(1)(A), (d)(1). Lahr also contends that the

Preliminary Statement should be stricken because it alleges immaterial, impertinent, or

scandalous matter.

With respect to Lahr’s verbosity argument, Defendants generally attribute the length of

their Answer to the fact that Lahr filed a 43-page complaint. Defendants explain that they

included the Preliminary Statement in their Answer to provide the reader with a plain and

concise description of their defenses and counterclaims at the outset of the lengthy document. 

(DE 24 at 2). 

 In support of their approach, Defendants cite Fox v. Will County, in which the plaintiff

began its complaint with a narrative section entitled “Nature of the Claim.” No. 04 C 7309,

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2011 WL 6206238, at *2 (N.D. Ill. Dec. 7, 2011). The defendant moved to strike the narrative

section on the basis that it was redundant, verbose, and prejudicial. Id. The Fox court rejected

the defendant’s arguments, noting that “provid[ing] an overview of [a party’s] case . . . is

common practice when filing complaints.” Id. The court explained: “The primary purpose of

[Rule 8] is rooted in fair notice: Under Rule 8, a complaint must be presented with intelligibility

sufficient for a court or opposing party to understand whether a valid claim is alleged and if so

what it is.” Id. (alteration in original) (quoting Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20

F.3d 771, 775 (7th Cir. 1994)). The court denied the defendant’s motion to strike, concluding

that the narrative section of the complaint provided the defendant with fair notice of the

plaintiff’s claims. Id.; see also Field v. Kittlaus, No. 94 C 1114, 1994 WL 505403, at *1 (N.D.

Ill. Sept. 14, 1994) (denying defendant’s motion to strike a Preliminary Statement in plaintiff’s

complaint as violative of Rule 8(a), stating that “this Court has found that the Preliminary

Statement is useful in providing information about the nature of the claim advanced by

[plaintiff]”).

Defendants argue that, like the “Nature of the Claim” section in Fox, the Preliminary

Statement helps provide the reader with adequate notice of their defenses and counterclaims. 

Lahr, however, emphasizes that the Fox court stated that a preliminary statement was a common

practice when filing complaints, not answers. 2011 WL 6206238, at *2. In comparison, Lahr

points to Ramos v. Playtex Prods., Inc., Nos. 08 CV 2703, 08 CV 2828, 08 CV 3352, 2008 WL

4066250, at *5 (N.D. Ill. Aug. 27, 2008), in which the court stated that “a preliminary statement

is generally unnecessary and improper in the context of a defendant’s answer to a complaint,”

and directed the defendants to limit their answers to numbered paragraphs that were responsive

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to each paragraph of the complaint. 

Here, however, in light of Lahr’s lengthy complaint and her use of detailed allegations,

and considering that Defendants are advancing counterclaims against her, the Court declines to

strike the Preliminary Statement on the basis that it is lengthy or redundant. The Preliminary

Statement addresses the central disputes between the parties and provides fair notice to Lahr of

Defendants’ counterclaims. See Logan v. Krupp, No. 3:08-cv-869 WDS, 2009 WL 2929829, at

*1 (S.D. Ill. Sept. 10, 2009) (“Motions to strike under Federal Rule 12(f) are not favored, and

are usually denied unless the language in the pleading has no possible relation to the controversy

and is clearly prejudicial.” (quoting Tektel, Inc. v. Maier, 813 F. Supp. 1333, 1334 (N.D. Ill.

1992))). “Although Rule 8 does not require such detail, it also does not necessarily preclude it.” 

Mink v. Barth Elec. Co., No. 1:08-CV-0561-SEB-JMS, 2008 WL 3914068, at *2 (S.D. Ind. Aug.

19, 2008). 

Lahr also seeks to strike the Preliminary Statement on the basis that it contains

immaterial, impertinent, or scandalous matter. Lahr argues that the Preliminary Statement

inappropriately: (1) emphasizes Dye’s charitable and political involvement, which she purports

is wholly irrelevant to whether he committed assault, battery, and other egregious acts; (2)

discounts Lahr’s claims for employment discrimination and sexual harassment on the basis that

she handled these types of claims for plaintiffs in her law practice and personally suffered from

workplace harassment in the past; and (3) describes Lahr’s physical attire during a purported

assault identified in the complaint. (DE 19 ¶ 11). 

But to succeed on her argument, Lahr must show that “the allegations being challenged

are so unrelated to [Defendants’ counter]claim[s] as to be void of merit and unworthy of any

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consideration and that the allegations are unduly prejudicial.” Ind. Ins. Co. v. Westfield Ins. Co.,

No. 10 C 2660, 2010 WL 3404971, at *3 (N.D. Ill. Aug. 26, 2010) (citation and internal

quotation marks omitted); see also Kaufman v. McCaughtry, No. 03-C-27-C, 2003 WL

23095690, at *1 (W.D. Wis. May 22, 2003). Here, Lahr put Dye’s political activities at issue in

her complaint (DE 1 ¶ 48), and Dye’s charitable and political activities are also connected to

Defendants’ abuse of process counterclaim (DE 15 Answer ¶ 48, Counterclaims ¶¶ 7, 10). Nor

is Lahr’s past experience as an employment lawyer immaterial or prejudicial, as she raises her

work as a practicing lawyer in her complaint several times (DE 1 ¶¶ 5-6, 11-13), and Dye

mentions it in the context of his abuse of legal process counterclaim (DE 15 at 5-6). Finally,

what clothing Lahr was wearing during a purported encounter may be an unnecessary detail, but

it is not so prejudicial that it must be stricken from the pleading. 

Accordingly, in these particular circumstances, Lahr’s motion to strike the Preliminary

Statement on the grounds that it is verbose and contains immaterial, impertinent, or scandalous

matter will be DENIED.

2. Lahr’s Motion to Strike Allegations Concerning Settlement Negotiations

In her second motion, Lahr seeks to strike the following paragraph from Defendants’

Preliminary Statement and Counterclaim I on the basis that it refers to the parties’ confidential

settlement negotiations:

On November 6, 2014, Lahr’s legal counsel made a written demand that Dye (1)

forego a $500,000 debt Lahr owed Dye, and (2) “sell” his CNG business to Lahr

for $11,000,000 at a time when Dye had a firm offer from a buyer for

$14,000,000. In exchange, according to Allen’s demand, the three plaintiffs

would go away. When that demand failed, Lahr abused the legal process by

threatening to seek an injunction stopping the sale of the CNG business without

any legal basis for doing so.

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(DE 15 at 2; see also DE 15 Counterclaims ¶ 8). Lahr emphasizes that the communication

referenced in this paragraph was part of ongoing settlement negotiations between the parties, and

that such communications were repeatedly identified as privileged and confidential by her

counsel. (DE 20-1 at 1, 5, 7, 11). She contends that Defendants’ description of the settlement

offer in their counterclaim for abuse of legal process was “not good faith.” (DE 20 at 3).

 “[S]tatements made during settlement negotiations are confidential.” Med. Assurance

Co. v. Weinberger, No. 4:06 cv 117, 2011 WL 2115662, at *2 (N.D. Ind. May 26, 2011) (citing

Fed. R. Evid. 408(a)(1), (a)(2); Estate of Sims ex rel. Sims v. Cty. of Bureau, 506 F.3d 509, 517

(7th Cir. 2007)). “There is a strong public policy in favor of promoting settlement.” Id. (citation

omitted). “Without confidentiality, the discussions and exchange of information necessary to the

settlement process may not occur.” Id. (citation omitted).

Defendants assert that they included the paragraph describing the parties’ settlement

negotiations because it contains “facts relevant to their abuse of process counterclaim.” (DE 22

at 2). But in federal court “pleadings are adjudged under the very liberal notice pleading

standard established in Rule 8 . . . .” Cordero v. Calvary SPV I., LLC, No. 04 C 1500, 2004 WL

1244107, at *2 (N.D. Ill. June 3, 2004); see Thomson v. Washington, 362 F.3d 969, 970 (7th Cir.

2004) (“The federal rules replaced fact pleading with notice pleading.”). Under this standard, all

that is required is “that the plaintiff set out in [his or her] complaint a short and plain statement

of the claim that will provide the defendant with fair notice of the claim.” Brooks v. Harding,

No. IP98-1200-C-T/G, 2001 WL 548098, at *5 (S.D. Ind. Mar. 30, 2001) (internal quotation

marks omitted) (quoting Anderson v. Simon, 217 F.3d 472, 474 (7th Cir. 2000)). 

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As such, Defendants could have advanced their claim, yet maintained some semblance of

confidentiality by omitting much of the factual details about the parties’ settlement negotiations. 

That is, Defendants could have simply alleged that Lahr made a settlement offer, and that when

Defendants rejected it, she abused the legal process by threatening to seek an injunction to stop

the sale of Dye’s business without any legal basis for doing so. Nevertheless, the settlement

negotiations have now been disclosed, and requiring Defendants to file an amended complaint

for the sole reason of restating this paragraph would be inefficient. 

A pleading “is not evidence; rather, it sets forth allegations.” BPI Energy, Inc. v. IEC

(Montgomery), LLC, No. 07-186-DRH, 2007 WL 3355363, at *1 (S.D. Ill. Nov. 13, 2007). 

“Where the settlement negotiations and terms explain and are a part of another dispute they must

often be admitted if the trier is to understand the case.” Id. at *2 (internal quotation marks and

citation omitted) (quoting Central Soya Co. v. Epstein Fisheries, Inc., 676 F.2d 939, 944 (7th

Cir. 1982)). 

Contrary to Lahr’s assertion (DE 26 ¶ 12), Defendants are not offering the settlement

communications to prove or disprove the validity or amount of a disputed claim. See Fox, 2011

WL 6206238, at *5. Rather, Defendants include the settlement negotiations as background for

their counterclaim that Lahr abused the legal process after Defendants rejected her settlement

offer. See id. Therefore, the Court will not strike the settlement negotiations from the Answer. 

That is not to say, however, that the settlement negotiations will be accepted as evidence under

Federal Rule of Evidence 408 in relation to a dispositive motion or at trial; those evidentiary

rulings are not before the Court at this juncture. Id.; see Valley Forge Ins. Co. v. Hartford Iron

& Metal, Inc., No. 1:14-cv-6, 2015 WL 1825567, at *4-5 (N.D. Ind. 2015) (rejecting defendant’s

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argument that plaintiff’s motion to amend should be denied because the proposed amendment

included settlement materials, stating that defendant may renew its objection under Rule 408 if

and when plaintiff attempts to use any settlement materials as evidence). 

Accordingly, Lahr’s motion to strike Defendants’ allegations concerning settlement

negotiations in the Preliminary Statement and Counterclaim I will also be DENIED. 

D. Conclusion

For the foregoing reasons, Lahr’s Motion to Strike Preliminary Statement (DE 19) and

Motion to Strike Allegations Concerning Settlement Negotiations (DE 20) are both DENIED. 

SO ORDERED. 

Enter for this 9th day of September 2015.

S/ Susan Collins 

Susan Collins

United States Magistrate Judge

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