Oshel v. Board of County Commissioners

Full title: STEPHANIE OSHEL, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS for the…

Court: United States District Court, D. New Mexico

Date published: Apr 21, 2010

Case No. 09-CV-00764 JEC/RHS (D.N.M. Apr. 21, 2010)

Opinion

Case No. 09-CV-00764 JEC/RHS.

April 21, 2010

Counsel for Plaintiffs: David Sandoval, Esq., George T. Geran, Esq., Santa Fe, NM.

Counsel for Defendants Frank Lovato, Terry Burks, Billy Merrifield, Curtis Young, Ernie E. Saucedo, and Sam Duran: Stephen G. French, Esq., Albuquerque, NM.

Counsel for Defendants Board of County Commissioners, Greg Parrish, Annabelle Romero, Robert Apodaca, Sherrie Lopez, Jessica Valdez, and Roman Abeyta: Christina L. Brennan, Esq., James P. Sullivan, Esq., Santa Fe, NM.

MEMORANDUM OPINION AND ORDER

JOHN CONWAY, Senior District Judge

THIS MATTER comes before the Court on the Motion to Strike Plaintiff's Affidavit from the Second Complaint (Doc. 17), filed February 19, 2010 by Defendants Lovato, Burks, Merrifield, Duran, Young, and Saucedo ("Motion"). Having reviewed the parties' submissions and being otherwise informed in the premises, the Court finds the Motion is well-taken and will be GRANTED.

I. BACKGROUND

Plaintiff is a former employee of the Santa Fe Department of Corrections Youth Development Program ("YDP"). While so employed, Plaintiff contends she was subject to disparate treatment, retaliatory discharge, and hostile work environment in violation of the New Mexico Human Rights Act and Title VII of the Civil Rights Act of 1964. 2^nd Am. Complt. (Doc. 12) at 14-17. Plaintiff also claims violations of the United States Constitution, including violations of the Equal Protection Clause, the First Amendment, and substantive due process, and conspiracy to commit same. Id. at 17-20. Also contained in her Complaint are allegations of wrongful termination/retaliatory discharge, breach of the implied covenant of good faith and fair dealing, defamation, and negligent hiring/supervision/training/investigation/retention. Id. at 21-28.

Attached to Plaintiff's 30-page Complaint is the 62-page Charging Affidavit of Stephanie Oshel, id. at Exhibit A, which was required as part of the charge she filed with the New Mexico Human Rights Division and the EEOC, Pl.'s Resp. To Defs.' Motion to Strike Aff. (Doc. 18) ("Resp.") at 1. The Charging Affidavit purports to set forth factual details supporting Plaintiff's allegations against Defendants. See generally 2^nd Am. Complt. at Ex. A.

Defendants Lovato, Burks, Merrifield, Duran, Young, and Saucedo ask the Court to strike Plaintiff's 62-page Charging Affidavit pursuant to Fed.R.Civ.P. 12(f). Motion at 1. Plaintiff opposes the Motion, claiming that the Charging Affidavit "is best considered a `written instrument' pursuant to Fed.R.Civ.P. 10(c) because it is `a document . . . giving formal expression to a legal act.'" Resp. at 2 (quoting Murphy v. Cadillac Rubber Plastics, Inc., 946 F.Supp. 1108, 1115 (W.D.N.Y. 1996). Further, Plaintiff contends the Charging Affidavit should not be stricken because it may be helpful if the Court finds it necessary to analyze the relation of the Complaint to the underlying EEOC charge or qualified immunity issues. Id. at 2-4.

II. LEGAL STANDARD

III. DISCUSSION

1210 Rose v. Bartle, 871 F.2d 331340Resp. Murphy v. Cadillac Rubber Plastics, Inc., 946 F.Supp. 1108-1115

Despite the potential usefulness of Plaintiff's Charging Affidavit in this litigation, Plaintiff is unable to point to any facts or authority to indicate that the Charging Affidavit should not be stricken as requested by Defendants.

IV. CONCLUSION

Neither the Charging Affidavit attached as Exhibit 1 to Plaintiff's Second Amended Complaint nor the administrative documents attached as Exhibit 2 to Plaintiff's Second Amended Complaint are the type of document that is considered part of a pleading pursuant to Rule 10(c). For this reason, Defendants' Motion is GRANTED.