United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge.
matter is before the Court on the motion of Plaintiff Terri
Kirsch to strike exhibit 1 to ZFX, Inc.'s reply in
support of its motion to intervene and arguments that
reference exhibit 1 under Federal Rule of Civil Procedure
12(f), ECF No. 68. ZFX, Inc. responded, ECF No. 69. Kirsch
replied, ECF No. 70. For the reasons explained below, the
Court will deny Kirsch's motion to strike.
Allegations in the Complaint
Court has previously discussed, Kirsch and Defendant Robert
Dean are each 50 percent shareholders in ZFX, Inc.
(“ZFX”). Compl. ¶¶ 2-4, ECF No. 1. ZFX
is a Nevada corporation that provides flying effects services
for stage performances. Id. ¶¶ 4, 7-8. In
2014, Kirsch told Dean that she was considering selling her
ZFX shares. Id. ¶ 20. Around December 2015,
Kirsch learned that Dean had removed her from the corporate
records as an officer and director. Id. ¶ 27.
February 2016, Dean sent Kirsch proposed sale agreements,
which she signed. Id. ¶¶ 28-29. Dean then
told Kirsch that he had discovered a number of financial
irregularities that had occurred while she was serving as
president of ZFX and that he would not be able to execute the
sales agreement until the financial irregularities were
resolved. Id. ¶ 33. He removed Kirsch's
access to ZFX's computer system and financial records.
Id. ¶ 32. He also discontinued her health and
dental insurance plans, and her pay. Id. ¶ 34.
then brought this action against Dean. She seeks a
declaration of rights that she is a 50% owner, director, and
president of ZFX and a 50% owner and member of ZFX Property
Holdings, LLC, a Kentucky limited liability company that owns
the property on which ZFX operates (Count I). Id.
¶¶ 17, 37-39. She also asserts that Dean breached
his fiduciary duties he owed her as a shareholder and member
(Court II), applies for a custodian under Nevada Revised
Statute § 78.347 (Count III), and seeks punitive damages
(Count IV). Id. ¶¶ 40-61.
October 2016, Dean moved to disqualify Kirsch's counsel,
Middleton Reutlinger, based upon a conflict of interest and
to strike documents that it had filed in the case. Mot.
Disqualify 1, ECF No. 20. The Court denied the motion to
disqualify Kirsch's counsel and to strike the documents
that the law firm had filed in the case. Order 12/6/16 1, ECF
No. 47. ZFX has now moved to intervene as a defendant in the
case to raise Middleton Reutlinger's conflict of
interest. Mot. Intervene 1, ECF No. 49.
ZFX's reply to its motion to intervene is exhibit 1. Ex.
1, ECF No. 64-1. Exhibit 1 is a compilation of Kirsch's
social media profiles from Twitter, LinkedIn, and Facebook.
Id. The exhibit includes posts and photographs that
Kirsch has uploaded to the social media websites, as well as
limited biographical information that she has provided to the
argues that the Court should strike exhibit 1 and arguments
in ZFX's motion to intervene that reference exhibit 1
because the exhibit is “irrelevant, ” “of a
personal nature, ” and was included in the record to
“embarrass and annoy [her] without serving any
substantive purpose in this case.” Mot. Strike 1, ECF
No. 68-1. ZFX argues in opposition that the motion to strike
should be denied because Rule 12(f) permits a court to strike
a “pleading” and an exhibit is not a pleading,
exhibit 1 is relevant to the present action, and the
information in exhibit 1 is readily available to the public.
Resp. Opp. Mot. Strike 1-5, ECF No. 69.
Rule of Civil Procedure 12(f) permits a court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” In this case, the information included in
exhibit 1's social media profiles appears to have been
made public by Kirsch. While the social media profiles may
include personal information, anyone with internet access
could have searched for and found the profiles. Therefore,