Gill et al v. United States Department of Agriculture

Filing 15

MEMORANDUM AND ORDER signed by Chief Judge Morrison C. England, Jr on 7/29/13 ORDERING that Plaintiff's MOTION to Strike 11 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RASHPAL SINGH GILL, et al.,

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Plaintiffs,

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No. 2:13-cv-00356-MCE-KJN

v.

MEMORANDUM AND ORDER

UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendant.

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Plaintiffs Rashpal Singh Gill and Dalwinder Kaur doing business as Livingston

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Grocery (“Plaintiffs”) filed this action against Defendant United States Department of

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Agriculture (“Defendant”) to obtain agency records related to Defendant’s investigation

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which resulted in Plaintiffs’ permanent ban from participating in the Supplemental

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Nutrition Assistance Program (“SNAP”). (ECF No 1.) Presently before the Court is

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Plaintiffs Motion to Strike portions of Defendant’s Answer. (ECF No 11.)1 For the

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reasons described below, the Court DENIES Plaintiffs’ Motion to Strike. (Id.)

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Because oral argument will not be of material assistance, the Court orders this
matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
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BACKGROUND2

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On June 28, 2012, Defendant revoked Plaintiffs’ right to participate in the SNAP

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after concluding Plaintiffs were “trafficking” benefits. (ECF No. 1-1.) In a letter dated

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September 13, 2012, Plaintiffs requested Defendant review its revocation decision and

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provide Plaintiffs with various documents. (ECF No. 1-2.) Defendant interpreted the

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request for documents as Freedom of Information (“FOIA”) request. On October 4,

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2012, Defendant responded to Plaintiffs’ FOIA request and mailed Plaintiffs its 173-page

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case file. (ECF No. 1-3.) Defendant’s cover letter explained that it withheld and

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redacted some documents because FOIA exemptions applied. On October 19, 2012,

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Plaintiffs appealed Defendant’s FOIA decision. (ECF No. 1.) On October 22, 2012,

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Defendant acknowledged receipt of Plaintiffs’ appeal. (Id.) Plaintiffs followed up with

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Defendant several times between November 2012 and January 2013 to obtain the

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requested documents and to inquire about the status of its appeal. (Id.) On January 30,

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2013, Defendant responded to Plaintiffs’ appeal releasing a few more documents while

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reiterating that the remaining documents fell under various FOIA exemptions. (ECF

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No. 1-4.) Consequently, on February 22, 2013, Plaintiffs filed this action under FOIA, 5

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U.S.C. § 552, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, seeking the

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expedited processing and release of agency records requested by Plaintiffs from

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Defendant. Defendant answered the Complaint on May 28, 2013. (ECF No. 10.)

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Shortly afterwards, Plaintiffs filed this Motion to Strike portions of Defendant’s Answer.

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(ECF No. 11.) Defendant filed an Opposition to this Motion and withdrew five of its

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seven affirmative defenses. (ECF No. 12.)

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The facts are taken sometimes verbatim from Plaintiffs’ Complaint (ECF No. 1)
and the attached Exhibits. (ECF Nos. 1-1 through 1-4.)
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Thus, only two affirmative defenses remain: (1) Defendant’s Second Affirmative Defense

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which states “as to FOIA exemptions 3 and 6, Plaintiffs failed to exhaust their

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administrative FOIA appeal remedy, waived suit, and cannot properly invoke this court’s

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subject matter jurisdiction;” and (2) Defendant’s Seventh Affirmative Defense which

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states “on the merits, FOIA Exemptions 3, 5, 6, 7C, and 7E support the agency’s

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withholding.”

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STANDARD

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The Court may strike “from a pleading an insufficient defense or any redundant,

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immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a

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Rule 12(f) motion to strike is to avoid the expenditure of time and money that must arise

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from litigating spurious issues by dispensing with those issues prior to trial. . . .” Sidney-

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Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Federal Courts view

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motions under Rule 12(f) with disfavor and infrequently grant them. 5C Charles Alan

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Wright et al., Federal Practice and Procedure § 1380 (3d ed. 1998). The Court views the

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pleading under attack “in the light more favorable to the pleader.” Garcia ex rel. Marin v.

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Clovis Unified Sch. Dist., no. 1:08-CV-1924 AWI SMS, 2009 WL 2982900, at *23 (E.D.

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Cal. Sept. 14, 2009).

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In order for a court to determine that a defense is “insufficient” as Rule 12(f)

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requires, the Court “must be convinced that there are no questions of fact that any

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questions of law are clear and not in dispute, and that under no set of circumstances

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could the defense succeed.”

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J & J Sports Productions, Inc. v. Delgado, No. CIV. 2:10-2517 WBS KJN, 2011 WL

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219594, at *1-2 (E.D. Cal. Jan. 19, 2011) (quoting Schmidt v. Pentair, Inc.,

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No. C08-4589 TEH, 2010 WL 4607412, at *2 (N.D. Cal. Nov. 4, 2010)); see also

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Bassett v. Ruggles et al., No. CV-F-09-528 OWW/SMS, 2009 WL 2982895, at *24 (E.D.

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Cal. Sept. 14, 2009); Lopez v. Wachovia Mortg., No. 2:09-CV-01510-JAM-DAD, 2009

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WL 4505919, at *5 (E.D. Cal. Nov. 20, 2009). “Immaterial matter is that which has no

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essential or important relationship to the claim for relief or the defenses being pleaded.”

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Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds

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510 U.S. 517 (1994) (internal citations and quotations omitted). “Impertinent matter

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consists of statements that do not pertain, and are not necessary, to the issues in

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question.” Id. (internal citations and quotations omitted). Redundant matter includes

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“needless repetition of other averments or [allegations that] are foreign to the issue.”

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Sliger v. Prospect Mortg., LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal. 2011).

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Courts have cautioned that if “the [C]ourt is in doubt as to whether challenged

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matter may raise an issue of fact or law, the motion to strike should be denied, leaving

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an assessment of the sufficiency of the allegations for adjudication on the merits.” Id.

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(citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)).

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ANALYSIS

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A.

Defendant’s Second Affirmative Defense

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In Defendant’s Second Affirmative Defense, Defendant argues that Plaintiffs failed

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to exhaust administrative remedies. Plaintiffs argue that Defendant’s Second Affirmative

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Defense should be struck because Defendant has not explained how this defense

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applies to this case; and, in particular, Plaintiffs argue that Defendant’s Answer fails to

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explain why FOIA Exemptions three and six (5 U.S.C. §§ 522(b)(3), (b)(6)) are relevant.

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(ECF No. 11-1.)
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Further, Plaintiffs argue that they have not waived suit, and Defendant has not explained

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why they believe Plaintiffs waived suit. On the other hand, Defendant argues that

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Plaintiffs failed to exhaust available FOIA administrative remedies. (ECF No. 12.)

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Plaintiffs could find the answer to its confusion in the exhibits it attached to its

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Complaint. (ECF No. 1-4.) In Defendant’s letter dated January 30, 2013, Defendant

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explains that it withheld information under 5 U.S.C. 552(b)(3), (b)(6), and (b)(7)(E) of

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FOIA, and that Plaintiffs only appealed its application of the “law enforcement

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investigation exemption” which is commonly known as FOIA Exemption 7E. (ECF 1-4.)

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Thus, Defendant takes the position that Plaintiffs did not file an administrative appeal of

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Defendant’s application of Exemption three and six (5 U.S.C. 552(b)(3), (b)(6)). Whether

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Plaintiffs had notice or whether Plaintiffs exhausted their administrative remedies is not

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an appropriate answer to reach on a Rule 12(f) Motion especially given federal courts’

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disfavor of such motions. Meas v. CVS Pharmacy, Inc., No. 11–CV–0823 JM (JMA),

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2011 WL 2837432, at *4 (S.D. Cal. July 14, 2011) (quoting 5C Wright & Miller § 1380

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(3d ed. 2004)). This issue should be resolved at a later, more substantive proceeding.

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Plaintiffs’ Motion to Strike Defendant’s Second Affirmative Defense is DENIED.

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B.

Defendant’s Seventh Affirmative Defense

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Defendant’s Seventh Affirmative Defense is a single sentence. In its Answer,

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Defendant states “on the merits, FOIA Exemptions 3, 5, 6, 7C and 7E support the

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agency’s withholding decision.” (ECF No. 10.) Plaintiffs argue that this defense does

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not rise to the level of a cognizable affirmative defense because Defendant does not

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explain what is meant by FOIA exemptions 3, 5, 6, 7C, and 7E, nor does Defendant

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allege any facts explaining why any of these exemptions apply. (ECF No. 11-1.)

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Defendant argues that in its October 2012 letter to Plaintiff (ECF No.1-3), it listed the

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various FOIA Exemptions that justified Defendant’s decision to withhold or redact

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documents. (ECF No. 12.)
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Defendant’s explanation represents the bare minimum; however, references to

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the FOIA Exemptions appear throughout the correspondence between Defendant and

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Plaintiff. (See ECF Nos. 1-1, 1-3, and1-4). Whether a FOIA Exemption applies is the

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crux of this case. Thus, a reference to a FOIA Exemption cannot be redundant,

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immaterial, impertinent, or scandalous, and it would be wildly inappropriate to strike the

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central issue of this case on a Rule 12(f) Motion. As the Ninth Circuit wrote in 2008,

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“[g]enerally, FOIA cases should be handled on motions for summary judgment.” Lane v.

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Dep’t of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (quoting Nolan v. Dep't of Justice,

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973 F.2d 843, 849 (10th Cir.1992)). Plaintiffs’ Motion to Strike Defendant’s Seventh

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Affirmative Defense is DENIED
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CONCLUSION

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For the reasons described above, Plaintiffs’ Motion to Strike (ECF No. 11) is
DENIED.
IT IS SO ORDERED.
Dated: July 29, 2013

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