Opinion
Civil Action 21-1228
10-04-2022
SAMUEL L. BROOKS Plaintiff, v. ORLANDO HARPER, LAURA K. WILLIAMS, DAVID ZETWO, JASON BEASOM, COUNTY OF ALLEGHENY, SERGEANT RAIBLE, OFFICER TUCKER, and TRINITY SERVICES GROUP Defendants.
ECF NO. 38
LENIHAN, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
BISSOON, DISTRICT JUDGE
I. RECOMMENDATION
It is respectfully recommended that Plaintiff's Motion to Strike portions of Defendant Trinity Services Group's Motion to Dismiss (ECF No. 38) be granted in part and denied in part. The Motion should be granted as it relates to the negligence claim in Count VIII of the Amended Complaint and denied as to those arguments relating to the § 1983 claim in Count I of the Amended Complaint. Because Plaintiff has not moved to strike Trinity's arguments concerning the RICO claims in Counts VI and VII, those arguments should also be considered in Trinity's Motion to Dismiss.
II. REPORT
A. Relevant Factual Allegations and Procedural Background
On September 10, 2021, Plaintiff, Samuel L. Brooks (“Plaintiff”) filed a complaint against the above captioned Defendants for violation of various constitutional rights relating to an alleged poisoning. ECF No. 1. The Complaint contained one count against the Defendant Trinity Services Group (“Trinity”) alleging negligence. On November 23, 2021, Trinity filed its Answer to the Complaint. ECF No. 7. On June 30, 2022, Plaintiff filed an Amended Complaint. Along with the negligence claim against Trinity at Count VIII, Plaintiff added a § 1983 claim against Trinity at Count I, along with two (2) RICO claims at Counts VI and VII. ECF No. 28.
On August 3, 2022, Trinity filed a Motion to Dismiss and Brief in Support as to all of these claims. ECF Nos. 34 & 35. On September 6, 2022, Plaintiff filed a Motion to Strike the Motion to Dismiss filed by Trinity. ECF No. 38. On September 29, 2022, Trinity filed its Response in Opposition to the Motion to Strike. ECF No. 45.
B. Legal Standard
Federal Rule of Civil Procedure 12(f) allows the court to strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). The standard on a motion to strike pursuant to Rule 12(f) “is so strict and . . . only allegations that are so unrelated to the plaintiffs' claims as to be unworthy of any consideration should be stricken.” Johnson v. Anhorn, 334 F.Supp.2d 802, 809 (E.D. Pa. 2004) (quoting Becker v. Chicago Title Ins. Co., No. Civ. A. 03-2292, 2004 WL 228672, at *6 (E.D. Pa. 2004)). “Moreover, striking portions of a plaintiff's pleadings is a ‘drastic remedy,' which should be used only when justice requires it.” Id. Allegations are immaterial or impertinent and should be stricken “if they do not have an important relationship to the claims pled or do not pertain to the issues involved.” Id.
The Court notes that Rule 12(f) applies only to pleadings, which according to Fed.R.Civ.P. 7(a), does not include a motion to dismiss. The Court, nonetheless, will recommend a resolution.
C. Analysis
Federal Rule of Civil Procedure 12(b) states that “[a] motion asserting any of [the seven enumerated] defenses must be made before pleading if a responsive pleading is allowed.” Fed.R.Civ.P. 12(b). Similarly, Rule 12(g)(2) provides that “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed.R.Civ.P. 12(g)(2). Here, in support of his Motion to Strike, Plaintiff argues that because Trinity filed its Answer to the original complaint, it may only move to dismiss the newly added RICO claims at Counts VI and VII. Trinity responds that it may move to dismiss the newly added § 1983 claim in Count I because it has had no opportunity to raise defenses or objections regarding Count I. Trinity offers no argument as to the negligence claim.
Plaintiff fails to note that he also added the § 1983 claim in Count I of the Amended Complaint.
Here, the Partial Motion to Strike should be granted as to those arguments in the Motion to Dismiss related to the negligence claim in Count VIII of the Amended Complaint. The allegations in the original complaint and the Amended Complaint pertaining to negligence are virtually identical. Defendant has already filed its Answer to this claim, and pursuant to Rule 12(b), a motion to dismiss the negligence claim should have been filed before Trinity's Answer at ECF No. 7.
It is further recommended that the Partial Motion to Strike should be denied as to all arguments relating to Count I of the Amended Complaint pertaining to § 1983. This is a newly added claim against Trinity in the Amended Complaint. Trinity must be given an opportunity to raise its arguments in its Motion to Dismiss. Trinity's arguments to dismiss the RICO claims are unchallenged in the Motion to Strike and should be considered by the Court.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that Plaintiff's Motion to Strike portions of Defendant Trinity Services Group's Motion to Dismiss (ECF No. 38) be granted in part and denied in part. The Motion should be granted as it relates to the negligence claim in Count VIII of the Amended Complaint and denied as to those arguments relating to the § 1983 claim in Count I of the Amended Complaint. Because Plaintiff has not moved to strike Trinity's arguments concerning the RICO claims in Counts VI and VII, those arguments should also be considered in Trinity's Motion to Dismiss.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.