Opinion
6:21-cv-00361-MK
09-13-2021
SUMMER DANNEKER, Plaintiff, v. CITY OF LINCOLN CITY et al., Defendants.
OPINION AND ORDER
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
In this employment discrimination action, Plaintiff Summer Danneker (“Plaintiff”) asserts ten claims against Defendant City of Lincoln City (“City”): (1) a Title VII claim for pregnancy and sex discrimination; (2) a Title VII claim for a hostile work environment; (3) a Title VII claim for retaliation; (4) a FMLA claim for interference with medical leave; (5) a state law claim for pregnancy and sex discrimination under ORS § 659A.030(1)(a)-(b); (6) a state law claim for a hostile work environment under ORS § 659A.030(1)(a)-(b); (7) a state law claim for failure to accommodate a pregnancy-related medical condition under ORS § 659A.147(b); (8) a state law claim for retaliation for requesting a pregnancy-related accommodation under ORS § 659A.147(c); (9) a state law claim for whistleblower retaliation under ORS § 659A.199 and ORS § 659A.203; and (10) a state law claim for wrongful discharge in violation of public policy. Plaintiff also alleges an additional state law claim against Defendants David Broderick, Robert Bomar, and Jerry Palmer for aiding and abetting an unlawful employment practice under ORS § 659A.030(1)(g). Lastly, Plaintiff asserts two additional claims against all Defendants: (1) a 42 U.S.C. § 1983 claim for deprivation of rights; and (2) a state law claim for retaliation under ORS § 659A.030(1)(f). Pl.'s Second Am. Compl. (“SAC”) ¶¶ 36-94, ECF No. 20. Defendants now move to strike allegations in the Second Amended Complaint. Defs.' Mot. to Strike, ECF No. 22. For the reasons that follow, the motion is DENIED.
STANDARD OF REVIEW
A court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). The purpose of Rule 12(f) is to help “avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)). However, motions to strike are generally disfavored and infrequently granted. Legal Aid Servs. of Or. v. Legal Servs. Corp., 561 F.Supp.2d 1187, 1189 (D. Or. 2008); see also Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F.Supp.3d 850, 858 (N.D. Cal. 2014) (“Motions to strike are regarded with disfavor because of the limited importance of pleadings in federal practice and because they are often used solely to delay proceedings.” (quotation marks and alterations omitted)).
Courts may not resolve disputed and substantial factual or legal issues in deciding a motion to strike. Whittlestone, 618 F.3d at 973. “A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Contreras, ex rel. Contreras v. Cty. of Glenn, 725 F.Supp.2d 1157, 1159 (E.D. Cal. 2010) (quoting Bassett v. Ruggles, 2009 WL 2982895, at *24 (E.D. Cal. Sept. 14, 2009)).
DISCUSSION
Defendants move to strike paragraph 35 in the Second Amended Complaint (“SAC”) as “immaterial, impertinent, and/or scandalous.” Defs.' Mot. to Strike, ECF No. 22 (quoting Fed.R.Civ.P. 12(f)). The paragraph reads as follows:
On information and belief, in investigating and disciplining employees, Defendants have treated others outside of Plaintiff's protected classes more favorably including, in 2019, when Defendants retained a similarly situated male employee accused of committing a violent felony involving drugging, sodomizing, and raping a woman.SAC ¶ 35, ECF No. 20.
Defendants first argue that paragraph 35 contains “extraneous allegations [that] should be disregarded.” Defs.' Reply, ECF No. 24. An immaterial matter is “that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fogerty, 984 F.2d at 1527. An impertinent matter consists of “statements that do not pertain, and are not necessary, to the issues in question.” Id.
Here, the Court cannot say that the allegations in paragraph 35 could have no possible bearing on the subject matter of the litigation. See Contreras, 725 F.Supp.2d at 1159. In an employment discrimination claim, a plaintiff can establish pretext through a “showing that the [defendant] treated similarly situated employees outside [the plaintiff's] protected class more favorably[.]” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). References to an unnamed comparator in paragraph 35 are material because they relate to whether Defendants' actions were a mere pretext for discrimination. Further, these allegations are relevant to Defendants' investigation and discipline of Plaintiff and others outside of her protected class. Absent this allegation, Plaintiff may not be able to establish the prima facie elements of her claims. As such, the Court declines to strike paragraph 35 in the SAC as immaterial or impertinent.
Defendants also argue that paragraph 35 is an “inflammatory allegation about unsubstantiated claims.” Defs.' Mot. to Strike, ECF No. 22. Under Rule 12(f), scandalous matters include “allegations that cast a cruelly derogatory light on a party or other person.” In re 2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000). Scandalous matters may also include any statement that “unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Est. of Osborn-Vincent v. Ameriprise Fin., Inc., No. 3:16-CV-02305-YY, 2019 WL 764029, at *2 (D. Or. Jan. 3, 2019), adopted, 2019 WL 943379 (D. Or. Feb. 25, 2019).
Here, Plaintiff's allegations about an unnamed comparator do not use repulsive language, cast a cruelly derogatory light on a person, or unnecessarily reflect on an individual's moral character. While the allegations may reflect negatively on this unnamed comparator's character, that alone is insufficient to justify striking the paragraph. See Americanwest Bank v. Banc of California, 2014 WL 1347166, at *4 (C.D. Cal. Apr. 4, 2014) (“[T]he mere fact of a negative reflection does not justify striking the allegations.”); see also Green v. Lew, 2014 WL 4471637, at *12 (D. Nev. Sept. 10, 2014), aff'd sub nom. Green v. Mnuchin, 693 Fed.Appx. 572 (9th Cir. 2017) (“Plaintiff cannot have an entire motion, response, or argument stricken simply because it contains something he does not like.”). As such, the Court declines to strike paragraph 35 in the SAC as scandalous.
Lastly, Defendants argue that Plaintiff's references to an unnamed comparator in paragraph 35 are an “attempt to obtain access to sensitive and inflammatory information in discovery.” Defs.' Mot. to Strike, ECF No. 22. However, Defendants' challenge to Plaintiff's potential discovery requests is premature. Defendants will have opportunities to contest discovery requests and to challenge the sufficiency of Plaintiff's evidence on summary judgment or at trial. Such evidentiary determinations are inappropriate at the pleadings stage.
CONCLUSION
For the reasons above, Defendants' motion to strike (ECF No. 22) is DENIED. Defendants' request for oral argument is DENIED as unnecessary. See LR 7-1(d)(1).