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July 18, 1962


The opinion of the court was delivered by: FEINBERG

Defendants in 418 antitrust treble-damage actions joined in three motions under Rule 12(j), Fed.R.Civ.P., 28 U.S.C.A. to strike certain allegations from the complaints. My opinion dated July 11, 1962, *fn1" dealt with the first of these and describes the background of the litigation. This opinion deals with the remaining motions directed to allegations relating to criminal and civil injunctive suits brought by the Government in Philadelphia against many of these defendants, and other allegedly prejudicial evidentiary matter.

The motions should be considered in the context of authority that not only makes clear that motions to strike on the grounds alleged here are not favored, but also raises grave doubt whether anything is gained by allowing the pleadings to be the battlefield in complex cases rather than moving such cases expeditiously through carefully supervised pretrial procedures.

 In Nagler v. Admiral Corp., 248 F.2d 319 (2 Cir. 1957), a treble-damage suit, the Court of Appeals reversed a judgment dismissing a complaint as insufficient. Attack on the complaint in Nagler asserted that too little -- not, as here, too much -- was alleged. But the Court stressed that over-emphasis on the pleading process in these cases is unwise. Thus, the Court said (248 F.2d at 326-327):

 'The sad truth is that these cases are likely to prove laborious in any event and that there is no real substitute for trial, although pre-trial conferences and orders may greatly speed the result. * * * The real solution -- so far as there is one short of trial -- would appear to be * * * continuing pre-trial conferences under the direction of a single judge who may thus avoid the duplicating efforts of various judges we have noted above.'

 While it is true that the Court in Nagler referred to pleading of evidence as 'surely not required and * * * on the whole undesirable,' (Id. at 326) the author of the Court's opinion elsewhere stated:

 'Occasionally there is a direction to prune off surplusage, a theoretically sound point of view, since these complaints, far from being models, are usually singularly verbose and full of unnecessary conclusions, cliches, and counts. Indeed, I fear the trend I am discussing in part because it promotes verbosity. But is there time in the Southern District for such pruning and perfectionism when the easier course is just to treat such excesses with silent disdain?' Clark, Special Pleading in the 'Big Case,' 21 F.R.D. 45, 51 (1957). *fn2"

 This pragmatic attitude is consistent with the general doctrine that has grown up around Rule 12(f). In discussing that doctrine, Professor Moore, after stating that motions to strike are not favored, adds:

 'Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation. If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied. Even if the allegations are redundant or immaterial, they need not be stricken if their presence in the pleading cannot prejudice the adverse party. * * * And where certain evidential facts, when read with the complaint as a whole, give a full understanding thereof, they need not be stricken. In suits involving multiple and complex issues greater latitude in pleading may be allowed since the impertinence may not be so clear.' 2 Moore, Federal Practice 2317-2319 (2 Ed.1961).

 Thus, in Fleischer v. A.A.P., Inc., 180 F.Supp. 717, 721 (S.D.N.Y.1959), the Court observed:

 'Before it may be determined that a portion of a complaint is immaterial it must clearly appear that the matter alleged can have no possible bearing on the issues of the trial * * *. Even if that determination is made, immaterial allegations, and likewise verbose, conclusory, or evidentiary allegations, need not be stricken unless their presence in the complaint prejudices the defendant.'

 Cf. Buchholtz v. Renard, 188 F.Supp. 888, 894 (S.D.N.Y.1960); Gas Consumers Ass'n v. Philadelphia Gas Works Co., 12 F.R.D. 125, 127 (E.D.Pa.1951); Tivoli Realty, Inc. v. Paramount Pictures, Inc., 80 F.Supp 800 (D.Del.1948); Sinaiko Bros. Coal & Oil Co. v. Ethyl Gasoline Corp., 2 F.R.D. 305 (S.D.N.Y. 1942); see Boerstler v. American Medical Ass'n, 16 F.R.D. 437, 446 (N.D.Ill.1954).

 These cases and modern notions of the pleading process in 'big' cases *fn3" express a useful approach: little is accomplished from attempting to prune complaints at this stage; they should be left intact unless matter is alleged whose materiality is highly unlikely. If such matter is alleged, then the Court may strike it, in its discretion, depending upon its assessment of other factors, including possible prejudice, elements of unfairness and threat of delay.


 The Motion to Strike References to Prior Grand Jury and Government Proceedings

 The allegations objected to are classifiable as: (1) references to pleas of guilty and the judgments entered thereon; (2) references to pleas of nolo contendere and the judgments entered thereon; (3) references to other incidents of the Government suits, such as the pendency of the civil injunctive proceedings, the indictments, the sentences and the Grand Jury proceedings. Defendants contend that these allegations are 'immaterial, impertinent and unfairly prejudicial to defendants.'

 A. References to Pleas of Guilty and Judgments Thereon

 Defendants have moved to strike all references to the pleas of guilty entered in the Philadelphia proceedings, *fn4" and the judgments of conviction on these pleas. Defendants, relying on the language of the statute, legislative history and judicial authority, argue that judgments on pleas of guilty are 'consent judgments' within the meaning ...

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