Foss v. Rowen

Filing 22

ORDER signed by Magistrate Judge Deborah Barnes on 10/05/16 denying 17 Motion for a more definite statement. Plaintiff shall file a response to defendants motion to dismiss within twenty-one days of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND C. FOSS,

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No. 2:15-cv-0686 TLN DB

Plaintiff,

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v.

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TODD ROWEN,

ORDER

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. Defendant moved to dismiss this action for failure to state a claim for

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which relief can be granted. (ECF No. 15.) Plaintiff did not file a response to defendant’s

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motion, but, instead, filed a “MOTION FOR MORE DEFINITE STATEMENT UNDER

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FEDERAL RULES OF CIVIL PROCEDURE 12(e).” (ECF No. 17.) Defendant construed

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plaintiff’s motion as a response to the motion to dismiss and filed a reply memorandum in support

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of the dismissal motion. (ECF No. 18.) Plaintiff rejected defendant’s interpretation and affirmed

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that he meant to file a motion pursuant to Federal Rule of Civil Procedure 12(e). (ECF No. 20.)

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For the reasons outlined below, the court denies plaintiff’s motion for a more definite statement

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and orders plaintiff to file a response to the dismissal motion within twenty-one days of this order.

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Plaintiff’s motion fails to comport with the requirements of Federal Rule 12(e). The scope

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of Rule 12(e) is limited to motions seeking clarification of the meaning of a pleading. Indeed,

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the rule specifically provides that “[a] party may move for a more definite statement of a

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pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the

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party cannot reasonably prepare a response.” (Emphasis added.) Plaintiff’s motion seeks a more

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definite statement of defendant’s motion to dismiss, which is not a pleading. Accordingly, Rule

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12(e) is inapplicable in this context and plaintiff’s motion must be denied.

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Additionally, interpreting the pro se plaintiff’s filings liberally, the court could construe

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the motion as a motion to strike or as an objection to defendant’s request to take judicial notice.

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In essence, plaintiff is attempting to strike the court records from a previous lawsuit that

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defendant attached to his motion. However, even as a motion to strike or an objection to the

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request to take judicial notice, plaintiff’s motion still fails.

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Pursuant to Federal Rule of Evidence 201, defendant requested the court take judicial

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notice of several documents from a 2008 lawsuit filed by plaintiff against the U.S. Marshal’s

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Service and other defendants in the Eastern District of California. (ECF No. 15-1.) The

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documents consist of the complaint, attachments to the complaint, and the Ninth Circuit’s opinion

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on the appeal in that case. (ECF No. 15-2.) Plaintiff objects to defendant attaching these

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documents to the dismissal motion and referencing information gleaned from the documents in

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the motion. (ECF No. 17.)

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Specifically, plaintiff asks that the court strike the motion and attachments for raising

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matters outside the four corners of the complaint. As a general rule, “a district court may not

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consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v.

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Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (citation omitted). However, a court may take judicial

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notice of “matters of public record” pursuant to Federal Rule of Evidence 201 without converting

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a motion to dismiss into a motion for summary judgment. MGIC Indem. Corp. v. Weisman, 803

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F.2d 500, 504 (9th Cir. 1986); see also Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th

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Cir. 2001). But a court may not take judicial notice of a fact that is “subject to reasonable

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dispute.” Fed. R. Evid. 201(b).
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Plaintiff’s contention that the extraneous documents must be stricken is without legal

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support. As found above, Federal Rule 12(e) is inapplicable. Furthermore, Federal Rule 12(f)

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(“Motion to Strike”) also does not apply because the documents plaintiff is attempting to strike

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are not part of the pleadings. See Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 974–75

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(9th Cir. 2010) (Rule 12(f) is limited to striking from a pleading only those specific matters which

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are provided for in the rule). “The Federal Rules of Civil Procedure do not provide for a motion

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to strike documents or portions of documents other than pleadings. Instead, trial courts make use

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of their inherent power to control their dockets, Anthony v. BTR Auto. Sealing Sys., 339 F.3d

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506, 516 (6th Cir. 2003), when determining whether to strike documents or portions of

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documents,” Zep Inc. v. Midwest Motor Supply Co., 726 F. Supp. 2d 818, 822 (S.D. Ohio 2010).

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See also Franklin v. U.S., No. 1:10–cv–00142–LJO–MJS, 2012 WL 5954016, *1 (E.D. Cal. Nov.

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28, 2012).

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In this instance, the court takes judicial notice of the extrinsic documents filed by

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defendant and overrules plaintiff’s objections. While plaintiff correctly points to the limits on the

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court as far as its use of these documents once they have already been noticed, plaintiff does not

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provide grounds for the extraordinary remedy of striking them from the record. The court may

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take judicial notice of the documents “‘not for the truth of the facts recited therein, but for the

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existence of the [documents], which [are] not subject to reasonable dispute over [their]

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authenticity.’” Lee, 250 F.3d at 690 (quoting Southern Cross Overseas Agencies, Inc. v. Wah

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Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)). So, as far as acknowledging

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the fact that these documents exist, the fact that plaintiff filed this previous lawsuit, the fact that

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plaintiff made certain allegations in the previous lawsuit, and the fact that the Ninth Circuit ruled

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a certain way in the previous lawsuit, the court takes judicial notice of the documents.

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Furthermore, a review of the noticed documents finds that they are not particularly

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relevant to the substance of defendant’s motion to dismiss, which actually relies upon the face of

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the complaint to establish the accrual date for the statute of limitations argument. So, without

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making any findings concerning the substance of defendant’s motion to dismiss, the court takes

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judicial notice of the documents attached to the dismissal motion.
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Therefore, it is hereby ORDERED that plaintiff’s motion for a more definite statement

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(ECF No. 17) is denied and plaintiff shall file a response to defendant’s motion to dismiss within

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twenty-one days of this order. Plaintiff is warned that his failure to file a timely opposition may

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result in dismissal of this case. See E.D. Cal. R. 230(l) (failure to file an opposition to a motion

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may be deemed a waiver of any opposition).

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Dated: October 5, 2016

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DLB:10
DLB1 / Prisoner - Civil Rights / foss0686.12(e)motion

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