
    MORTENSEN v. CHICAGO, GREAT WESTERN RY. CO.
    No. 39.
    District Court, S. D. Iowa, W. D.
    Sept. 13, 1941.
    R. B. Hasselquist, of Omaha, Neb., and J. A. Williams, of Council Bluffs, Iowa, for plaintiff.
    Ross, Everest, Geiser & Johnson, of Council Bluffs, Iowa,, for defendant.
   DEWEY, District Judge.

The motion is to strike two of the alleged grounds of negligence.

Rule 12 (f) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, does provide that upon motion the court may order any redundant, immaterial, impertinent, or scandalous matter stricken from any pleading.

This gives the court a broad discretion, but the general theory of the Rules of Civil Procedure is that, inasmuch as it is only necessary to state a claim in the pleadings as against the defendant and not a cause of action, questions of what should be the grounds of negligence to be submitted to a jury should not be determined by the court until the parties have had an opportunity to investigate by discovery and otherwise what are the facts surrounding the situation concerning which the complaint is made. It would be more satisfactory, after these facts are known, to determine this question of what grounds of negligence should be submitted to a jury either at the time of the trial or at a pre-trial conference.

The motion to strike should be and the same is overruled and the defendant excepts.  