Professional Documents
Culture Documents
Plaintiffs,
v.
Defendants.
_______________________________________/
24. The motion suffers from two fatal flaws, each of which is sufficient to
1
See
Doc. 19, Doc. 20: the School Board’s and Principal Lay’s Motions to
Dismiss, alleging lack of standing to assert District-wide constitutional
violations. Defendants also complained about Plaintiffs’ discovery that seeks to
uncover additional examples of these District-wide constitutional violations;
this Court afforded Defendants additional time to respond.
the School Board for Santa Rose County (“the School Board”) to prevent this
First, Defendants confuse Rule 12(f), a rule of pleading, with Rule 408, a
rule of evidence. Rule 12(f) establishes standards for pleading and authorizes
district courts to “order stricken from any pleading ... any redundant,
Second, even if a Rule 408 Motion in Limine by Defendants were ripe for
Paragraphs 64 and 65 of the Complaint fall outside the ambit of Rule 408(a):
Meetings with the School Board’s counsel nearly one year ago, and the
the Defendants had notice of their unconstitutional acts before this suit was
filed.
Moreover, Defendants rely on cases from within the Eleventh Circuit only to
establish the Rule 12(f) standard for striking pleadings or allegations; they cite
2
no cases from within the Eleventh Circuit as support for the extraordinary relief
they seek. Defendants ignore a plethora of cases from this District as well as
the Southern and Middle Districts of Florida; not even the cases Defendants cite
actually support their motion; and two cases they rely upon support denial of
their motion. Accordingly, Plaintiffs respectfully request that this Court deny
allege:
Doc. 1 at 24.
Rule 12(f) authorizes district courts to order that “any redundant, immaterial,
3
motion to strike will ‘usually be denied unless the allegations have no possible
*5 (N.D. Fla. Oct. 2, 2007) (Vinson, J.). Indeed, Rule 12(f) motions are so
rarely granted that they have judicially been deemed “time wasters.” Id. at n.7
County, Fla., 778 F.Supp. 518, 519 (M.D. Fla.1991) (characterizing motions to
strike as “time wasters” and observing that such motions “will usually be
denied”).
Harvey v. Lake Buena Vista Resort, LLC, 568 F.Supp.2d 1354, 1359 (M.D. Fla.
2008) (emphasis added) (quoting Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure: Civil §1380 (2d ed.1990)).
4
Partnership, 2008 WL 2277549 *2 (N.D. Fla. May 30, 2008) (Mickle, J.)
(denying motion to strike under Rule 12(f) where “allegations in each amended
show an alleged pattern of disregard for the tenants’ repair needs after being put
added) (citing Royal Ins. Co. of America v. M/Y Anastasia, 1997 WL 608722 at
*3 (N.D. Fla.1997) (Vinson, J.)); Reyher v. Trans World Airlines, Inc., 881
Here, Plaintiffs alleged that ACLU staff met with the School Board’s
attorney in November 2007 to place the Board on notice that school officials
class and at school events,” and that the School Board’s attorney did in fact take
neither impertinent nor immaterial and therefore should not be stricken. See
5
Rule 12(f) motion to strike; “the paragraphs in question create a context for
understanding the violations alleged in the Complaint. They are relevant and
Nor are they unfairly prejudicial”) (emphasis added). See also Vaughn v. City
department, which was not a proper party to the action; allegations “are
appropriate because the actions of the Orlando Police Department are generally
analysis”); Cherry v. Crow, 845 F. Supp. 1520, 1524-25 (M.D. Fla. 1994)
practice).
custom they are neither irrelevant nor immaterial, and Defendants’ Rule 12(f)
could at some point be the proper subject of a motion in limine, any evidentiary
ruling would at best be premature. See Powell v. Carey Int’l, Inc., 2006 WL
6
3008070 *2 (S.D. Fla. Oct. 19, 2006) (“many of the allegations involve
questions of law that are not prejudicial to Defendants and are more
Cooney, 535 F. Supp. 2d 1255, 1263 (S.D. Ala. 2007) (denying Rule 12(f)
admissibility of evidence not before the court, and court declined to “impose the
Rule 12(f)”).
denied the very relief they seek here. In Berry v. Lee, 428 F. Supp.2d 546 (N.D.
Tex. 2006), defendants moved pursuant to Rule 12(f) to strike the following
paragraph from Plaintiff’s complaint: “After the attempts of [Lee] and Shin
failed to force [Berry] to quit, as part of this conspiracy, [Lee] and Shin had
Marco Golding approach [Berry] and offer [her] $300,000.00 to keep silent and
under 12(f) are viewed with disfavor and are infrequently granted,” the court
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denied the motion to strike; the court was “unable to determine on the existing
at 563.
Id. at 564 (emphasis added). That is precisely our point: this is an evidentiary
issue that cannot be resolved in the context of this Rule 12(f) motion. 2
admissible on the issue of notice and any attempt under Fed. R. Evid. 408(a) to
II. The Factual Allegations Are Not Barred By Fed. R. Evid. 408.
evaluating a Motion to Strike, the court must treat all well-pleaded facts as
2
Notably,
the remaining cases on which Defendants rely, other than for the
Rule12(f) standard, are all cited within Berry, id. at 563. We distinguish those
cases in Section II, infra.
8
“consider matters beyond the pleadings.” If this were a properly timed motion
settlement matters that even fall within Rule 408. The memorandum dated
11/27/07, Doc. 24-2 at 6, was sent from Mr. Green to the School Board, not to
the ACLU. Mr. Paul’s affidavit does not aver prejudice; Defendants’ motion
does not argue prejudice, but only vaguely asserts “a chilling effect.” Doc. 24
paragraphs 64 or 65. It is not clear, therefore, that the allegations are even
919 F. Supp. 1564, 1569 (M.D. Fla. 1996) (applying Florida’s equivalent of
Rule 408 and holding that providing a debtor with the amount of the debt owed
9
Law Dictionary, 359 (4th ed. 1951)). See also Evonik v. Degussa Corp. v.
Quality Carrier, Inc., 2007 WL 4358260 (S.D. Ala. 1007) (where defendants
made no threshold showing of prejudice, Rule 12(f) standard for striking not
met).
within the “permitted uses” enumerated in Rule 408(b), titled “Compromise and
10
The rule does not preclude allegations of evidence offered to prove that the
The amendment does not affect the case law providing that Rule 408
is inapplicable when evidence of the compromise is offered to prove
notice. See, e.g., United States v. Austin, 54 F.3d 394 (7th Cir. 1995)
(no error to admit evidence of the defendant's settlement with the
FTC, because it was offered to prove that the defendant was on
notice that subsequent similar conduct was wrongful); Spell v.
McDaniel, 824 F.2d 1380 (4th Cir. 1987) (in a civil rights action
alleging that an officer used excessive force, a prior settlement by the
City of another brutality claim was properly admitted to prove that
the City was on notice of aggressive behavior by police officers).
In Ramada Dev. Co. v. Rauch, 644 F.2d 1097, 1107 (5th Cir. 1981),3 the
Fifth Circuit agreed with the district court that an expert witness’s settlement
subject matter of the litigation, namely alleged defects in a Ramada Inn motel,
was properly excluded under Rule 408; the report “was to identify arguable
However, in footnote 9 of its opinion, the Court of Appeals noted that a series
of letters between counsel for both sides, referring to a list of complaints given
3
See
Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en
banc) (adopting as binding precedent all decisions of the former Fifth Circuit
rendered prior to October 1, 1981).
11
to the expert “could have proved this notice issue without prejudice to
Here, the meeting and letters referred to in paragraphs 64 and 65 are relevant
improperly excluded under rule 408; letters went to issue of notice of claims);
Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir. 1987) (evidence of past
Township, 2004 WL 1824356 (E.D. Pa. July 27, 2004). That case did not
unlawful conduct, and did not strike any allegations pursuant to Rule 12(f).
took place after the suit was filed. 2004 WL 1824356 at **4, 14. The court
12
for leave to supplement was based upon futility of amendment under Rule 15,
Fed. R. Civ. P., read in conjunction with Rule 408, Fed. R. Evid. Id. at *15.
1285089 *8 (D. Minn. June 5, 2002), the district court struck allegations
that arose during a status conference before the Magistrate Judge on the ground
that the allegations were not completely immaterial as they provided “context to
provide a proper context for the litigation, as this District has recognized, the
13
92872 at *11. Here, paragraphs 64 and 65 relate to notice and should not be
excluded under Rule 408 or stricken under Rule 12(f). To the extent that
inquiries in the Middle District of Florida, see Sandlin v. Shapiro & Fishman,
919 F. Supp. 1564, 1569, and the Southern District of Alabama, see Evonik
compromise negotiations.
district court simply held without explanation that “[t]he settlement discussions
alleged by plaintiff violate Rule 408 and thus are stricken from the complaint
pursuant to Rule 12(f).” 145 F.R.D. at 40. None of the cases on which
Eleventh Circuit, this District and the Middle and Southern Districts of Florida.
14
In short, the cases on which Defendants rely are neither controlling nor
persuasive. For the foregoing reasons, Plaintiffs respectfully request that this
RESPECTFULLY SUBMITTED,
15
Certificate of Service
Counsel for Defendants School Board of Santa Rosa County, Florida, and
John Rogers, in His Official Capacity as Superintendent of the School District
of Santa Rosa County, Florida:
/s/Maria Kayanan
Maria Kayanan
Fla. Bar 305601
Mkayanan@aclufl.org
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