UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

Case No. 3:08-cv-361-MCR-EMT

MINOR I. DOE, through parent

PARENT I. DOE; MINOR II. DOE, through
PARENT II. DOE,

Plaintiffs,

v.

SCHOOL BOARD FOR SANTA ROSA

COUNTY, FLORIDA; JOHN ROGERS, in
His official capacity as Superintendent of the
School District of Santa Rosa County, Florida;
H. FRANK LAY, in his official capacity as
Principal of Pace High School,

Defendants.
_______________________________________/

PLAINTIFFS’ OPPOSITION TO MOTION TO STRIKE [Doc. 24]

Plaintiffs oppose Defendants’ Motion to Strike Plaintiffs’ Complaint, Doc.

24. The motion suffers from two fatal flaws, each of which is sufficient to

compel denial of the motion; it is part and parcel of a two-pronged attempt1 by

                                                            
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

Court from considering any references to the School Board’s District-wide

unconstitutional custom of promoting school officials’ religious beliefs and

proselytizing students in class and at school events.

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,

immaterial, impertinent, or scandalous matter.” Rule 408 is an evidentiary rule

that governs the admissibility of evidence of settlement or compromise.

Evidentiary matters are not ripe for this Court’s adjudication.

Second, even if a Rule 408 Motion in Limine by Defendants were ripe for

adjudication, the motion would be without merit. The matters referred to in

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

resulting documents, would be admissible under Rule 408(b) to establish that

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

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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

Defendants’ Motion to Strike.

I. Rule 12(f) Standards Compel Denial of Defendants’ Motion to Strike.

Defendants ask this Court to strike paragraphs 64 and 65 of Plaintiffs’

complaint as “impertinent and immaterial” references to settlement

negotiations. Doc. 24 at 3-4. Paragraphs 64 and 65 of Plaintiffs’ Complaint

allege:

64. During a meeting with ACLU staff on November 14, 2007,

the School Board’s attorney reviewed a number of instances in
which school officials promoted their religious beliefs and
proselytized students in class and at school events.

65. Several weeks later, the School Board’s attorney,

recognizing that school officials were in violation of the
Establishment Clause, drafted a memorandum to advise which
school officials’ practices violated the Establishment Clause.
However, the School Board failed to end the unconstitutional,
policies, practices, and customs.

Doc. 1 at 24.

Rule 12(f) authorizes district courts to order that “any redundant, immaterial,

3
  

impertinent, or scandalous matter” be stricken from a pleading. However, “[a]

motion to strike will ‘usually be denied unless the allegations have no possible

relation to the controversy and may cause prejudice to one of the

parties.’” Beaulieu v. Bd. of Trustees of Univ. of West Fla., 2007 WL 2900332

*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

(quoting Somerset Pharms., Inc. v. Kimball, 168 F.R.D. 69, 71 (M.D.

Fla.1996)); accord Carlson Corporation/Southeast v. School Bd. of Seminole

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”).

Both because striking a portion of a pleading is a drastic remedy and

because it often is sought by the movant simply as a dilatory tactic,
motions under Rule 12(f) are viewed with disfavor and are
infrequently granted. It must be shown that the allegations being
challenged are so unrelated to plaintiff’s claims as to be unworthy of
any consideration as a defense and that their presence in the pleading
throughout the proceeding will be prejudicial to the moving party ....
Thus, even when technically appropriate and well-founded, they
often are not granted in the absence of a showing of prejudice to the
moving party.

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
  

Thus, “a motion to strike should be denied unless the challenged allegations

in the complaint ‘have no possible relationship to the controversy, may confuse

the issues, or otherwise prejudice a party.’” Henry v. Nat’l Housing

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

complaint that refer to problems in other tenants’ apartments are relevant to

show an alleged pattern of disregard for the tenants’ repair needs after being put

on notice that multiple apartments suffered similar problems”) (emphasis

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

F.Supp. 574, 576 (M.D. Fla.1995).

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

were “promoting their personal religious beliefs and proselytizing students in

class and at school events,” and that the School Board’s attorney did in fact take

notice of such constitutional violations. Doc. 1 at 24. Those allegations are

neither impertinent nor immaterial and therefore should not be stricken. See

Henry, 2008 WL 2277549 at *2. Accord Sinclair v. Town of Yankeetown, 2008

WL 660089 *5 (N.D. Fla. March 7, 2008) (Mickle, J. ) (denying defendants’

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

they speak directly to Plaintiff’s allegations of illegal behavior by Defendants.

These paragraphs are not immaterial, impertinent or scandalous to Defendants.

Nor are they unfairly prejudicial”) (emphasis added). See also Vaughn v. City

of Orlando, 2008 WL 3540434 *3 (M.D. Fla. Aug. 12, 2008) (denying

defendants’ Rule 12(f) motion to strike allegations against Orlando police

department, which was not a proper party to the action; allegations “are

appropriate because the actions of the Orlando Police Department are generally

attributed to the City of Orlando for purposes of Section 1983 liability

analysis”); Cherry v. Crow, 845 F. Supp. 1520, 1524-25 (M.D. Fla. 1994)

(denying defendants’ Rule 12(f) motion to strike allegations of prior prison

incidents; prior incidents were relevant to evidence defendants’ custom or

practice).

Because the allegations in paragraphs 64 and 65 are relevant to Defendants’

custom they are neither irrelevant nor immaterial, and Defendants’ Rule 12(f)

motion should be denied. Even if the factual allegations in those paragraphs

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

appropriately left to be addressed on the merits”). See also Chambers v.

Cooney, 535 F. Supp. 2d 1255, 1263 (S.D. Ala. 2007) (denying Rule 12(f)

motion to strike where evidence on which motion predicated consisted of

statements made by defendant in purported settlement negotiations; question of

admissibility of evidence not before the court, and court declined to “impose the

drastic, disfavored remedy of striking the challenged allegations pursuant to

Rule 12(f)”).

Defendants mistakenly rely on a Northern District of Texas decision that

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

leave her employment at Bao Sheng. Plaintiff refused.” 428. F. Supp. 2d at

562. Recognizing that “because striking a portion of a pleading is a drastic

remedy, and because it often is sought by movant as a dilatory tactic, motions

under 12(f) are viewed with disfavor and are infrequently granted,” the court

7
  

denied the motion to strike; the court was “unable to determine on the existing

record whether the statements actually constitute settlement negotiations.” Id.

at 563.

Given the disfavored status of motions to strike, uncertainties that

exist regarding the admissibility of Lee’s and Golding’s statements,
and the absence of any allegations by defendants that they are
prejudiced by the recounting of these alleged statements in the
complaint, the court declines to strike ¶ 96. Rather, defendants may
move to exclude evidence of the statements, if appropriate, at a later
stage of the litigation.

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

Even though any evidentiary analysis is not ripe for adjudication, as we

establish in Section II below, the facts alleged in paragraphs 64 and 65 would be

admissible on the issue of notice and any attempt under Fed. R. Evid. 408(a) to

exclude evidence of the facts alleged would fail.

II. The Factual Allegations Are Not Barred By Fed. R. Evid. 408.

Defendants acknowledge the Rule12(f) standard, correctly stating that “[i]n

evaluating a Motion to Strike, the court must treat all well-pleaded facts as

admitted and cannot consider matters beyond the pleadings,” Doc. 24 at 2

                                                            
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
  

(emphasis added). However, they then append Mr. Paul’s affidavit,

correspondence and a memorandum, thereby inviting this Court to do just that:

“consider matters beyond the pleadings.” If this were a properly timed motion

in limine, it would nevertheless fail. In an abundance of caution to avoid any

later arguments of waiver, we address the admissibility of the matters referred

to in paragraphs 64 and 65.

Defendants have not established that the meetings referred to in paragraph

64 or the documents related to the meetings and referenced in paragraph 65 are

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

at 5. Moreover, there is no “compromise” or “settlement” reflected in

paragraphs 64 or 65. It is not clear, therefore, that the allegations are even

related to compromise or settlement. See, e.g., Sandlin v. Shapiro & Fishman,

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

was not a settlement agreement, as “definition of ‘compromise’ is a ‘settlement

of differences by mutual concessions,’ and “there were no mutual concessions

9
  

in the amounts indicated in the letters sent by Defendants”) (quoting Black's

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).

Even if the allegations Defendants seek to strike did relate to settlement

negotiations, the facts alleged in paragraphs 64 and 65 of the Complaint fall

within the “permitted uses” enumerated in Rule 408(b), titled “Compromise and

Offers to Compromise” which reads in its entirety:

(a) Prohibited uses.--Evidence of the following is not admissible

on behalf of any party, when offered to prove liability for, invalidity
of, or amount of a claim that was disputed as to validity or amount,
or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or
offering or promising to accept--a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations
regarding the claim, except when offered in a criminal case and the
negotiations related to a claim by a public office or agency in the
exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the

evidence is offered for purposes not prohibited by subdivision (a).
Examples of permissible purposes include proving a witness’s bias
or prejudice; negating a contention of undue delay; and proving an
effort to obstruct a criminal investigation or prosecution.

Fed. R. Evid. 408.

10
  

The rule does not preclude allegations of evidence offered to prove that the

School was on notice of its wrongful conduct. As stated in the Committee

Notes to the 2006 Amendments to Rule 408,

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).

Fed. R. Evid. 408 Advisory Committee Notes to 2006 Amendment.

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

report “that would function as a basis of settlement negotiations” regarding the

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

defects that could then be discussed in monetary terms in the negotiations.”

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

Ramada.” 644 F.2d 1107 at n.9.

Here, the meeting and letters referred to in paragraphs 64 and 65 are relevant

to the issue of Defendants’ notice of constitutional violations. Cf. Rodriguez-

Garcia v. Municipality of Caguas, 495 F.3d 1, 11 (1st Cir. 2007) (in

employment dispute, letters between claimant’s attorney and municipality were

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

settlements admissible under rule 408 to prove notice of wrongful conduct),

cert. denied, 484 U.S. 1027 (1988).

Defendants rely on Philadelphia’s Church of our Savior v. Concord

Township, 2004 WL 1824356 (E.D. Pa. July 27, 2004). That case did not

address allegations of pre-suit meetings to place defendant on notice of

unlawful conduct, and did not strike any allegations pursuant to Rule 12(f).

Instead, the district court denied leave to supplement a First Amended

complaint to include allegations relating to in-court settlement negotiations that

took place after the suit was filed. 2004 WL 1824356 at **4, 14. The court

rejected defendants’ argument that Rule 408 strictly prohibits allegations of

settlement negotiations and engaged in a lengthy analysis of the futility of

12
  

plaintiffs’ attempt to allege facts arising from those negotiations to attack

defendants’ credibility. Id. at **11-14. The court’s denial of plaintiffs’ motion

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.

The court’s ruling was not based on Rule 12(f).

In United States ex rel. Alsaker v. CentraCare Health Sys., Inc., 2002 WL

1285089 *8 (D. Minn. June 5, 2002), the district court struck allegations

relating to admissions defendant made during confidential settlement

negotiations. However, the court denied defendants’ motion to strike matters

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

the underlying action.” Id. at n. 3. Alsaker in fact supports denial of

Defendants’ motion. Even where allegations may relate to negotiations, if they

provide a proper context for the litigation, as this District has recognized, the

facts contained in the allegations may be admitted notwithstanding Rule 408.

Sinclair v. Town of Yankeetown, 2008 WL 660089 at *5.

Defendants also rely on Agnew v. Aydin Corp., 1988 WL 92872, *4 (E.D.

Pa. Sept. 6, 1988). In Agnew, the referenced negotiations were alleged to

establish defendant’s liability and apparently for no other reason. 1988 WL

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

Agnew may be factually similar to this case, the Eastern District of

Pennsylvania’s refusal to determine whether the negotiations were

“compromise negotiations” at all, departs from the district courts’ threshold

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

DegussaCorp. v. Quality Carrier, Inc., 2007 WL 4358260 — both within the

Eleventh Circuit — as to whether the matters alleged in fact even related to

compromise negotiations.

Finally, Defendants cite to Kelly v. L.L. Cool J., 145 F.R.D. 32

(S.D.N.Y.1992). The Southern District of New York granted a Rule 12(f)

motion to strike without specifying which allegations were stricken. The

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

Defendants rely has any controlling effect on this Court’s consideration of

Defendants’ motion to strike—particularly in light of the body of law from the

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

Court deny Defendants’ Motion to Strike.

Dated this 3rd day of November, 2008

RESPECTFULLY SUBMITTED,

/s/ Maria Kayanan

Maria Kayanan Benjamin James Stevenson
Fla. Bar No.: 305601 Fla. Bar No.:598909
mkayanan@aclufl.org bstevenson@aclufl.org
Randall C. Marshall American Civil Liberties Union
Fla. Bar No.: 181765 Found. of Florida
rmarshall@aclufl.org Post Office Box 12723
American Civil Liberties Union Pensacola, FL 32591-2723
Found. of Florida Tel: 786.363.2738
4500 Biscayne Blvd., Suite 340 Fax: 786.363.1985
Miami, Florida 33137
Tel: 786.363.2707 Daniel Mach
Fax: 786.363.1108 D.C. Bar No.: 461652
dmach@aclu.org
Glenn M. Katon Heather L. Weaver
Fla. Bar. No. 636894 D.C. Bar No.: 495582
American Civil Liberties Union hweaver@aclu.org
Found. of Florida ACLU Program on Freedom of
Post Office Box 18245 Religion and Belief
Tampa, FL 33679 915 15th Street, NW
gkaton@aclufl.org Washington, DC 20005
Tel: 813.254.0925 Tel: 202.675.2330
Fax: 813.254.0926 Fax: 202.546.0738

Counsel for Plaintiffs

15
  

Certificate of Service

I HEREBY CERTIFY that on November 3rd, 2008, I electronically filed

Plaintiffs’ Opposition to Motion to Strike in the United States District Court for
the Northern District of Florida, Pensacola Division, by using the CM/ECF
system which will send a notice of electronic filing to the following counsel of
record:

Counsel for Defendant H. Frank Lay:

Christopher Barkas, Esq.

Matthew Liebenbaut, Esq.
Carr Allsion
305 South Gadsden Street
Tallahassee Florida

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:

Robert J. Sniffen, Esq.

J. David Marsey, Esq.
Sniffen Law Firm, P.A.
211 East Call Street
Tallahassee, Florida 32301

Paul Green, Esq.

Johnson, Green & Miller, P.A.
6850 Caroline Street
Milton, Florida 32570

/s/Maria Kayanan
Maria Kayanan
Fla. Bar 305601
Mkayanan@aclufl.org

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