
    Robert MORALES, Angela Morales, Brandon R. Morales, Mary Ann Morales, and Tate W. Morales, Plaintiffs, v. E.D. ETNYRE & CO., Road Machinery Company, Inc., and John Does 1-10, Defendants.
    No. CIV.04-0558 JB/WDS.
    United States District Court, D. New Mexico.
    June 15, 2005.
    Jerrald J. Roehl, The Roehl Law Firm, P.C., Albuquerque, NM, for Plaintiffs.
    
      Terry R. Guebert, Marcus E. Garcia, Guebert, Bruckner & Bootes, P.C., Albuquerque, NM, for Defendant E.D. Etnyre & Co.
    Miller Stratvert, P.A., Albuquerque, NM, for Defendant Road Machinery Company.
   MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants E.D. Etnyre & Co. and Road Machinery Company’s Motion to Strike, filed February 18, 2005 (Doc. 82). The Court held a hearing on this motion on February 18, 2005. The primary issue is whether the Court should strike the Plaintiffs’ additional facts numbered 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, and 15 in the Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Partial Summary Judgment on Duty to Maintain, filed February 4, 2005 (Doc. 71). Based on the reasons stated on the record, and consistent with the Court’s ruling at the hearing on this motion, the Court will deny the Defendants’ motion.

Defendant E.D. Etnyre & Co. and Road Machinery Company have filed this Motion to Strike the Plaintiffs’ facts submitted in opposition to the Defendant’s Summary Judgment on the Duty to Maintain, filed January 21, 2005 (Doc. 57). The Defendants filed their motion for summary judgment pursuant to rule 56 of the Federal Rules of Civil Procedure. In the Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for Partial Summary Judgment on Duty to Maintain, the Plaintiffs’ submitted additional facts, information, and documents. The Defendants contend that the Plaintiffs’ additional facts, are irrelevant, and that the additional information and documents constitute inadmissible evidence, lack of foundation, and do not stand for the proposition cited. The Defendants move the Court, pursuant to rules 56(e) and (g), to strike the Plaintiffs’ additional facts numbered 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, and 15 in the Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Partial Summary Judgment on Duty to Maintain.

The Court does not generally strike facts that are irrelevant, inadmissible, lack foundation, or do not stand for the proposition cited, before it considers the merits of the motion for summary judgment. It is often difficult to determine what is a relevant fact and what is not until the Court considers the motion for summary judgment itself. The Court will, therefore, deny the motion to strike, but consider the Defendant’s arguments when it describes the motion for summary judgment.

IT IS ORDERED that Defendants E.D. Etnyre & Co. and Road Machinery Company’s Motion to Strike is denied. The Court will consider the Defendants’ arguments in connection with its consideration of Defendants E.D. Etnyre & Co. and Road Machinery Company’s Motion for Summary Judgment on Duty to Maintain.  