Martel v. Cadjew et al

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/20/2011 ORDERING 9 that defendants' motion to strike plaintiff's references to Doe defendants in plaintiff's first amended complaint is GRANTED. The remainder of defendants' motion to strike, is DENIED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MARTEL,
Plaintiff,

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No. CIV S-11-0509 JAM EFB PS

vs.

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FRANK CADJEW and JULIE CADJEW,

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Defendants.

ORDER
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This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to

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Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Pending before

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the undersigned is defendants’ motion to strike portions of plaintiff’s complaint and first

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amended complaint. Dckt. No. 9. For the reasons stated herein, the motion to strike is denied in

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part and granted in part.

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I.

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Background
In February 2011, plaintiff Richard Martel filed a complaint against defendants Frank

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and Julie Cadjew, alleging claims for aggravated false imprisonment, assault, battery, and

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intentional infliction of emotional distress. Dckt. No. 1. On April 7, 2011, defendants filed a

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motion to quash service of the summons and complaint and to dismiss for insufficient service of

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process. Dckt. No. 5. However, on April 18, 2011, plaintiff filed a first amended complaint;
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thereafter, defendants withdrew their motion to quash. Dckt. Nos. 7, 8. The first amended

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complaint alleges claims for false imprisonment, assault, battery, intentional infliction of

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emotional distress, and violation of California Civil Code section 52.1. Dckt. No. 7.

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Specifically, the first amended complaint alleges, among other things, that on September

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26, 2010, plaintiff and two companions were walking along the old state highway 37 between

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Donner Summit and Donner Lake when they encountered defendants, who approached plaintiff

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and his companions, informed them that they were on a private road on defendants’ private

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property, and directed that they leave. Id. ¶¶ 11-15. Plaintiff alleges that Frank Cadjew yelled at

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him “in threatening, abusive, profane, and obscene language and never stopped,” threatened him,

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and assaulted him by “forcefully shov[ing] the front of his boot into the gravel, sand, and rock

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roadbed, causing gravel, sand, and rocks to fly up and hit Plaintiff in the face.” Id. ¶¶ 16-18.

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Plaintiff further alleges that defendants ordered plaintiff and his companions to follow

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defendants “down the hill” and off defendants’ property. Id. ¶¶ 25-32. Plaintiff contends that

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defendants “knew, and have known for years, that they have no legal basis for claiming any

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ownership of the county road, but rather use threats and violence to keep the public off the road.”

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Id. ¶ 34.

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II.

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Motion to Strike
Defendants now move to strike portions of plaintiff’s complaint and first amended

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complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(f). Dckt. No. 9. Plaintiff

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opposes the motion. Dckt. No. 10.

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A.

Standards

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Rule 12(f) authorizes the court to order stricken from any pleading “any redundant,

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immaterial, impertinent, or scandalous matter.” A matter is immaterial if it “has no essential or

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important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v.

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Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by 510 U.S. 517 (1994).

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A matter is impertinent if it consists of statements that do not pertain to and are not necessary to
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the issues in question. Id. Redundant matter is defined as allegations that “constitute a needless

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repetition of other averments or are foreign to the issue.” Thornton v. Solutionone Cleaning

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Concepts, Inc., 2007 WL 210586 (E.D. Cal. Jan. 26, 2007) (citing Wilkerson v. Butler, 229

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F.R.D. 166, 170 (E.D. Cal. 2005)). Finally, a matter is scandalous if it improperly casts a

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derogatory light on a party or other person. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221

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(D.N.J. 1984); Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 665 (7th Cir. 1992).

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As with motions to dismiss for failure to state a claim, when ruling upon a motion to strike, the

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court must view the pleading under attack in the light more favorable to the pleader. Lazar v.

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Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000); Multimedia Patent Trust v. Microsoft

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Corp., 525 F. Supp.2d 1200, 1207 (S.D. Cal. 2007).

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Motions to strike are generally disfavored and will usually be denied unless the

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allegations in the pleading have no possible relation to the controversy, and may cause prejudice

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to one of the parties. See 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d

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1380; see also Hanna v. Lane, 610 F. Supp. 32, 34 (N.D. Ill. 1985). However, granting a motion

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to strike may be proper if it will make trial less complicated or eliminate serious risks of

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prejudice to the moving party, delay, or confusion of the issues. Fantasy, 984 F.2d at 1527-28.

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If the court is in doubt as to whether the challenged matter may raise an issue of fact or

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law, the motion to strike should be denied, leaving an assessment of the sufficiency of the

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allegations for adjudication on the merits. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d

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970 (9th Cir. 2010); see also 5A Wright & Miller, supra, at 1380. Whittlestone emphasized the

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distinction between Rule 12(f) and Rule 12(b)(6) and noted that if Rule 12(f) were to be read “in

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a manner that allowed litigants to use it as a means to dismiss some or all of a pleading . . . we

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would be creating redundancies within the Federal Rules of Civil Procedure.” Id. at 976; see

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also Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977) (“Rule 12(f) is neither an

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authorized nor a proper way to procure the dismissal of all or a part of a complaint.”).

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B.

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Defendants argue that although plaintiff’s complaint is based on an alleged incident that

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occurred on defendants’ land on September 26, 2010, plaintiff “has polluted his pleadings with

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vague references to unrelated matters that allegedly occurred in 2006 and other pejorative matter

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that is immaterial, impertinent and scandalous, to such a degree that relief is appropriate under

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[Rule] 12(f).” Dckt. No. 9-1 at 2. Defendants contend that the objectionable matter in plaintiff’s

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pleadings “harbors the potential to harm [defendants] and other persons, and to confuse both this

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Court and a jury with unrelated and hearsay recitations of superfluous historical allegations.” Id.

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Defendants contends that they are “at risk of prejudice by the possibility that Plaintiff will

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attempt to display the offensive pleading to a jury or otherwise publish the pleading.” Id.

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Finally, defendants note that “the objectionable matter is neither alleged upon the personal

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knowledge of Plaintiff, nor properly premised upon information and belief.” Id.

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Discussion

Specifically, defendants contend that paragraphs 6 through 10 of plaintiff’s complaint

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and first amended complaint are immaterial, impertinent, and scandalous. Id. at 4. They argue

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that paragraphs 6 through 10, which allege generally that in 2006 defendants, with the help of

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two recently elected Nevada County Supervisors, unsuccessfully attempted to obtain legal title to

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the county road at issue, are “superfluous historical allegations” and “unnecessary particulars,”

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and should therefore be stricken as immaterial since nothing that is alleged to have transpired in

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2006 is material or pertinent to plaintiff’s claims of being assaulted, battered by debris, or

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otherwise injured on September 26, 2010 by individuals he met for the first time on that day. Id.

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Defendants also argue that paragraphs 6 through 10 are “scandalous in that they improperly ‘cast

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a cruelly derogatory light on a party and other person.’” Id. Defendants contend that “[t]he

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overall theme of paragraphs 6-10 is to denigrate [defendants], who owned undeveloped, forested

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acreage for 24 years, as secret and sinister real estate developers, maneuvering and conspiring

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with politicians and government officials to posture the property for development and

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exploitation” and that such “derogatory comments have no relevance or place in a pleading on
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file with this Court.” Id.
Defendants also seek to strike as impertinent and immaterial the second sentence of

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paragraph 33, in which plaintiff alleges that a police officer who came out to take plaintiff’s

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report after the incident told plaintiff that Frank Cadjew’s conduct amounted to both assault and

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battery, and all of paragraph 34, in which plaintiff alleges that defendants did not file a

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trespassing complaint as they threatened to do, evidencing defendants’ knowledge that they had

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no legal basis for claiming ownership in the county road. Defendants argue that “[t]he

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prejudicial impact of allowing any such irrelevant, conclusory and inadmissible hearsay

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statements to remain in a pleading that Plaintiff may attempt to show a jury is readily apparent.”

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Id. at 6.
Defendants also seek to strike as impertinent, immaterial, and scandalous, the second

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sentence of paragraph 49 of the complaint and paragraph 55 of the first amended complaint, in

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which plaintiff alleges that both defendants are “violent and unstable” man” and that “this

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incident is only one of many, including many in which Frank Cadjew held a rifle or chainsaw to

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law-abiding citizens and their young children, while using disgusting obscene and threatening

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language and kidnapping them in his vehicles with his rifle sitting on the seat between him and

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the children.” Id.

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Finally, defendants move to strike paragraph 4 of each pleading, in which plaintiff states

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that he anticipates adding additional defendants and causes of action and will, at that time,

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request leave of court to add those defendants (listed in the first amended complaint as Does 1-

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20) and/or causes of action. Id. Defendants contend that the paragraphs are impertinent and

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immaterial because Doe defendants are inappropriate in this action. Id.

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Plaintiff opposes the motion, arguing that the challenged portions of the complaint “are

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highly relevant to the litigation.” Dckt. No. 10 at 3. Specifically, plaintiff contends that

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paragraphs 6 through 10 “provide important understanding of the historical background and

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context for this lawsuit,” which “is necessary to show that defendants were well aware of the
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legal status of the old state/county road and the public’s right to use it, thus negating defendants’

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fraudulent argument . . . that they had a right to order plaintiff off the road and also allowed

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them to commit violence against plaintiff.” Id. “It also illustrates the defendants’ blatant

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contempt of the legal ruling by Caltrans in 2006 and their contempt for the public and the law,

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while intimidating the public by dropping names of three public officials who sided with

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defendants.” Id. Plaintiff also argues that the newspaper articles in paragraph 8 are very

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relevant and necessary “to show the state of mind of Defendant Frank Cadjew as he was quoted

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in the newspaper,” including “what he knew and when he knew it concerning his lack of

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ownership of the old road.” Id. at 4.

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Paragraphs 6 through 10 of plaintiff’s first amended complaint allege that in 2006

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defendants, with the help of two recently elected Nevada County Supervisors who engaged in

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dishonest and misleading conduct, unsuccessfully attempted to obtain legal title to the county

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road at issue. Dckt. No. 7, ¶¶ 6-8. The paragraphs also allege that despite their “defeat,”

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defendants “continued to make their absurd and fraudulent claim of ownership of the road and

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threatened and harassed many people hiking on the road since March 2006.” Id. ¶ 9. Plaintiff

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refers to defendants as “outlaws” and alleges that “[d]efendants were lucky in that none of their

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many victims filed police reports or sued them for their illegal actions.” Id. ¶¶ 9, 10. Although

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defendants argue that the allegations in paragraphs 6 through 10 are “superfluous historical

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allegations” and “unnecessary particulars,” and that the overall theme of paragraphs 6 through 10

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is to denigrate defendants, paragraphs 6 through 10 do provide a context for plaintiff’s lawsuit

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and reflect on defendants’ knowledge and awareness regarding the legal status of the road on

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which the incident occurred. Where allegations, when read with the complaint as a whole, give a

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full understanding thereof, they need not be stricken. LeDuc v. Kentucky Cent. Life Ins. Co., 814

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F. Supp. 820, 830 (N.D. Cal. 1992). Also, although defendants contend that they are “at risk of

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prejudice by the possibility that Plaintiff will attempt to display the offensive pleading to a jury

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or otherwise publish the pleading,” as plaintiff notes, the “complaint is very unlikely to be used
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as a jury exhibit” and “defendants may move to exclude evidence of the statements, if

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appropriate, at a later stage of the litigation.” Dckt. No. 10 at 5. At this stage, the court is unable

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to conclude that paragraphs 6 through 10 are irrelevant, immaterial, impertinent, or scandalous,

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as defendants contend. Therefore, defendants’ motion to strike those paragraphs will be denied.

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The second sentence of paragraph 33 of plaintiff’s first amended complaint alleges that a

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police officer who came out to take plaintiff’s report after the incident told plaintiff that Frank

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Cadjew’s conduct amounted to both assault and battery. Dckt. No. 7, ¶ 33. Paragraph 34 alleges

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that defendants did not file a trespassing complaint as they threatened to do, evidencing

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defendants’ knowledge that they had no legal basis for claiming ownership in the county road.

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Id. ¶ 34. Although defendants contend that the paragraphs are irrelevant, conclusory and

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inadmissible hearsay statements and that there will be a significant risk of prejudice to

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defendants if those paragraphs are not stricken since plaintiff may attempt to show the complaint

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to a jury, once again, the allegations provide a context for plaintiff’s lawsuit and reflect on

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defendants’ knowledge and awareness regarding the legal status of the road on which the

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incident occurred. Clearly, defendants dispute the allegations. At trial, or in appropriate in

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limine motions it will be determined what testimony and evidence is presented to the jury.

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However, simply because defendants adamantly deny the allegations of the complaint is not a

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legally grounded reason to strike those allegations. The court is unable to conclude that the

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paragraphs at issue are irrelevant, immaterial, impertinent, or scandalous, and defendants’

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motion to strike those paragraphs will be denied.

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The second sentence of paragraph 49 of the complaint and paragraph 55 of the first

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amended complaint alleges that plaintiff “will provide witnesses at trial who will describe their

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own encounters with this violent and unstable man, Defendant Frank Cadjew, and nearly equally

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violent and unstable woman, Julie Cadjew, to show that this incident is only one of many,

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including many in which Frank Cadjew held a rifle or chainsaw to law-abiding citizens and their

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young children, while using disgusting obscene and threatening language and kidnapping them
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in his vehicles with his rifle sitting on the seat between him and the children.” Dckt. No. 7, ¶ 55.

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Although those allegations certainly attack defendants’ character, they are alleged to support

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plaintiffs’ claim for punitive damages. Defendants dispute the truthfulness of these allegations,

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but the dispute itself is not a basis for striking them. Because the court cannot say at this time

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that the allegations are irrelevant, impertinent, immaterial, or scandalous, defendants’ motion to

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strike those allegations is denied.

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Finally, in paragraph 4, plaintiff states that as discovery progresses, he anticipates adding

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additional defendants and causes of action and will, at that time, request leave of court to add

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those defendants (listed in the first amended complaint as Does 1-20) and/or causes of action.

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Id. Defendants move to strike that paragraph as impertinent and immaterial because Doe

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defendants are inappropriate in this action. The use of Doe Defendants in federal court is

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problematic, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), and ultimately

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unnecessary.1 Should plaintiff learn through discovery the identities of parties he wishes to

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serve, he must promptly move pursuant to Rule 15 of the Federal Rules of Civil Procedure to file

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an amended complaint to add them as defendants. See Brass v. County of Los Angeles, 328 F.3d

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1192, 1197-98 (9th Cir. 2003). If the timing of his amended complaint raises questions as to the

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statute of limitations, plaintiff must satisfy the requirements of Rule 15(c). Rule 15(c), not the

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state practice of Doe pleading, is the controlling procedure for adding defendants who identities

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were discovered after commencement of the action. Therefore, while plaintiff may seek to

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amend his first amended complaint to add the presently unknown parties pursuant to Federal

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Rule of Civil Procedure 15, the inclusion of Doe defendants in the first amended complaint is

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inappropriate. Accordingly, defendants’ motion to strike plaintiff’s references to Doe defendants

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is granted. See Graziose v. Am. Home Products Corp., 202 F.R.D. 638, 643 (D. Nev. 2001).

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“As a general rule, the use of fictitious Doe defendants is not favored in federal court.”
Newman v. San Joaquin Delta Community College Dist., 2010 WL 3633737, at *2 (E.D. Cal.
Sept. 14, 2010); Turner v. County of Los Angeles, 18 Fed. App’x 592, 596 (9th Cir. 2001)).
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III.

Conclusion
Accordingly, IT IS HEREBY ORDERED that defendants’ motion to strike plaintiff’s

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references to Doe defendants in plaintiff’s first amended complaint is granted. The remainder of

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defendants’ motion to strike, Dckt. No. 9, is denied.

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Dated: September 20, 2011.

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