BITTAKIS v. CITY OF EL PASO

Full title: MARK JAMES BITTAKIS, Plaintiff, v. THE CITY OF EL PASO, et al., Defendants

Court: United States District Court, W.D. Texas, El Paso Division

Date published: Mar 31, 2006

No. EP-05-CV-0402-FM (W.D. Tex. Mar. 31, 2006)

Opinion

EP-05-CV-0402-FM.

March 31, 2006

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION TO STRIKE PURSUANT TO RULE 12(f)

FRANK MONTALVO, District Judge

On this day, the Court considered "Defendants' County of El Paso and Jaime Esparza, In His Official Capacity, Motion to Strike Pursuant to Rule 12(f)" [Rec. No. 17], and "Plaintiff's Response to Defendants' County of El Paso and Jaime Esparza, In His Official Capacity, Motion to Strike Pursuant to Rule 12(f)" [Rec. No. 33] filed in the above-captioned cause. After careful consideration of the motion, response, case file and applicable law, this Court is of the opinion that the motion to strike should be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Through the "First Amended Complaint of Mark James Bittakis, Application for Declaratory Judgment and Application for Injunctive Relief" [Rec. No. 2], Plaintiff Mark James Bittakis ("Plaintiff") brings this action for relief alleging violations of his First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights and for § 1983 Civil Rights violations. Plaintiff's Complaint claims relief pursuant to 42 U.S.C. §§ 1985, 1986, 1988, as well as 18 U.S.C. §§ 1961- 1968. Defendants are The City of El Paso, County of El Paso ("County"), District Attorney Jaime Esparza ("Esparza"), Assistant District Attorney Lisa Clausen and El Paso Police Officers Krandell Chew, Laura Canonizado, J. Nevarez, and Raul Prieto. Plaintiff's original complaint [Rec. No. 1] also introduced a variety of state claims against various Defendants. In addition, Plaintiff seeks a declaratory judgement that holds the District Attorney Management System ("DIMS") agreement and manual illegal, unconstitutional, and void pursuant to Federal Rule of Civil Procedure 57 and 28 U.S.C. §§ 2201 and 2202. Further, Plaintiff requests the Court issue a permanent injunction against Defendants City, County, and Esparza.

Plaintiff's amended Complaint [Rec. No. 2] alleges that on January 30, 2005, Plaintiff was scheduled to depart the El Paso Airport after performing work at Holloman Air Force Base. Plaintiff, a resident of Florida, was a contractor working for the United States Elgin Air Force Base in Florida. At the El Paso Airport, Plaintiff's luggage was inspected by a Transportation Security Administration inspector who found a package containing a white powdery substance in Plaintiff's luggage. Officers of the El Paso Police Department were then called to the Airport. Plaintiff alleges that he was informed that the officers determined the white substance to be cocaine as a result of a field drug test. Plaintiff maintains the substance was actually laundry detergent.

Plaintiff was subsequently placed under arrest by the El Paso Police Department (EPPD) for possession of cocaine. The officers next called the DIMS attorney on duty, who Plaintiff alleges was Defendant Clausen. After the case was accepted for prosecution by the El Paso County District Attorney's Office, Plaintiff was transported to the El Paso County Detention Center. On January 31, 2005, Plaintiff was taken before magistrate James Carter. Although it is not clear from the Complaint exactly how many days Plaintiff spent in jail, the Complaint does state that "[i]t was now the sixth day Bittakis had been in jail and he still had not been able to contact his family or an attorney." [Rec. No. 2, pg. 20]. The charge against Plaintiff was subsequently declined for prosecution by the District Attorney's office and Plaintiff was not prosecuted for the offense.

Defendants County and Esparza, in his official capacity, now move to strike portions of Plaintiff's Complaint as being redundant, immaterial, impertinent, or scandalous pursuant to Federal Rule of Civil Procedure 12(f).

II. FEDERAL RULE OF CIVIL PROCEDURE 12(F) STANDARD

Rule 12(f) states that "[u]pon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules . . . upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). "The motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy." Augustus v. Bd. of Pub. Instruction, 306 F.2d 862, 868 (5th Cir. 1962) (citations omitted). "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." FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D.Tex. 1993); see also 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1380 (2d ed. 1990 Supp. 2003).

While Rule 8(a) of the Federal Rules of Civil Procedure requires a short and plain statement of the claim showing that the plaintiff is entitled to relief, a motion to strike must be denied if there is any question of fact or law. See id; FED. R. CIV. P. 8(a). Immateriality is established by showing the challenged allegations "can have no possible bearing upon the subject matter of the litigation." Sadler v. Benson Motors Corp., 1997 WL 266735, at *1 (E.D.La. May 15, 1997) (quoting Succession of Wardlaw v. Whitney Nat'l Bank, 1994 WL 479183, at *1 (E.D.La. Aug. 30, 1994)). "Scandalous" in Rule 12(f) "generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court." 2 MOORE'S FEDERAL PRACTICE § 12.37[3] at 12-97; see also Cobell v. Norton, 224 F.R.D. 266, 280 (D.D.C., 2004).

III. ANALYSIS

Defendants' motion moves the Court to strike approximately sixty-eight paragraphs and approximately thirteen exhibits from Plaintiff's Complaint. Defendants' motion identifies the number of the paragraph or exhibit from Plaintiff's Complaint and then states its objection. Plaintiff's response contends that this lawsuit is fact intensive and "[i]n order to give fair notice to all of the Defendants, Plaintiff has plead facts which make it abundantly clear what gave rise to his cause of action." [Rec. No. 33, pg 1].

After a careful review of the portions of the complaint that Defendants move to strike, the Court denies Defendants' Rule 12(f) motion in its entirety. The Court finds Defendants have not shown any of the statements to be prejudicial, nor have they shown the paragraphs in dispute are immaterial, redundant, or scandalous to a degree that would warrant striking the paragraphs. The allegations in Plaintiff's Complaint are made in the context of his theory of the case. Additionally, the Court notes that Defendants County and Esparza do not allege that they have been prejudiced by any of the allegations in Plaintiff's Complaint. A detailed review of the pertinent case law shows that motions to strike are rarely granted in the absence of a showing of prejudice to the moving party, especially where, as here, there are highly disputed issues of fact and law. See e.g., 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1380 at 649-50 (2d ed. 1990 Supp. 2003).

IV. CONCLUSION

For the reasons discussed above, the Court finds that Plaintiff's allegations are not immaterial, impertinent, redundant, prejudicial or scandelous.

IT IS THEREFORE ORDERED that "Defendants' County of El Paso and Jaime Esparza, In His Official Capacity, Motion to Strike Pursuant to Rule 12(f)" [Rec. No. 17] is hereby DENIED.