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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division XEROX CORPORATION, Plaintiff, ) ) ) ) ) ) ) ) ) ) )

v.

Civil Action No. RWT 03-2226

IM ATEK , INCORPORATED, Defendant.

MEMORANDUM OPINION I. On July 7, 2003, Xerox Corporation ("Xerox") sued ImaTek, Incorporated ("ImaTek") for payments due on outstanding invoices and breach of contract. ImaTek answered Xerox's Complaint and asserted a more than sixty paragraph Counterclaim for breach of contract, fraud and unjust enrichment. In Paragraphs 8-20 of its Counterclaim, ImaTek alleges that, beginning in the mid-1990s, Xerox engaged in certain unorthodox accounting practices without reporting the results of those practices to the Securities and Exchange Commission. On November 4, 2003, Xerox filed an (Amended) Motion to Strike Paragraphs 8-20 of ImaTek's Counterclaim on the grounds that the allegations in those paragraphs are immaterial, impertinent and scandalous pursuant to Federal Rule of Civil Procedure 12(f).1

In its original Motion to Strike, filed on November 4, 2003, Xerox only sought to strike Paragraphs 10-20 of ImaTek's Counterclaim. On the same day, Xerox filed a Motion to Amend its Motion to Strike to include Paragraphs 8 and 9. Rule 12(f) of the Federal Rules of Civil Procedure states: "Motion to Strike. Upon motion made by either party before responding to a pleading, or if no responsive pleading is permitted by these

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ImaTek opposes the Motion. II. ImaTek opposes Xerox's Motion in part because ImaTek claims that Xerox rendered its Motion moot by answering ImaTek's Counterclaim on the same day that it filed its Motion to Strike. The Court finds that Xerox was within its right to file its Motion and answer ImaTek's Counterclaim on the same day in order to avoid protracted litigation. See 5A Charles Alan Wright, Arthur R. Miller and Edward H. Cooper,

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Maryland Law