Delta Sigma Theta Sorority, Inc. v. Bivins et al

Filing 144

ORDER granting 143 Defendants Letisha D. Bivins, Alphonso D. Goins, and Frathouse Clothing, LLC's Partially Unopposed Joint Motion to Strike Plaintiff's First Amended Complaint and Exhibits 8, 9, and 11 With Leave to Refile the First Amended Complaint and Exhibits 8 and 9 in Conformance With the Agreement of the Parties. Plaintiff Delta Sigma Theta, Inc. is DIRECTED to file a Second Amended Complaint, which is consistent with this Order and the parties' agreement, on or bef ore April 17, 2015. Defendants Letisha D. Bivins, Alphonso D. Goins, and Frathouse Clothing, LLC have fourteen (14) days after Plaintiff files the Second Amended Complaint to file a response. The Clerk of Court is directed to STRIKE the First Amended Complaint 116 and remove it from the record. Signed by Judge Sheri Polster Chappell on 4/13/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

DELTA SIGMA THETA SORORITY,
INC.,
Plaintiff,
v.

Case No.: 2:14-cv-147-FtM-38CM

LETISHA D. BIVINS, ALPHONSO D.
GOINS, FRATHOUSE CLOTHING,
LLC,
Defendants.
___________________________________/
ORDER1
This matter is before the Court on Defendants Letisha D. Bivins, Alphonso D.
Goins, and Frathouse Clothing, LLC's Partially Unopposed Joint Motion to Strike Plaintiff's
First Amended Complaint and Exhibits 8, 9, and 11 With Leave to Refile the First
Amended Complaint and Exhibits 8 and 9 in Conformance With the Agreement of the
Parties filed on April 7, 2015. (Doc. #143). Plaintiff Delta Sigma Sorority, Inc. does not
oppose the relief requested. (Id. at 1 n.1, 7). Thus, this matter is ripe for review.
On February 9, 2015, Defendants moved to strike paragraph 29 of the First
Amended Complaint and Exhibits, 8, 9, and 11 attached thereto. (Doc. #120; Doc. #121).
The Court denied Defendants' motion without prejudice because they did not file a proper

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Local Rule 3.01(g) certification. (Doc. #132). As such, the Court directed the parties to
confer in a good faith attempt to resolve the issues raised in Defendants' motion to strike.
(Id. at 3). The parties now advise the Court that they have met and reached an agreement
on the matter. The Court will discuss the agreement in turn below.
1. Paragraph 29 of the First Amended Complaint
Defendants move to strike paragraph 29 of the First Amended Complaint, which
reads, "Ms. Bivins has an intimate relationship with Mr. Goins, such that, notwithstanding
any purported assignment of her interest in FratHouse to Mr. Goins, she has incentives
to continue, support and facilitate, and has in fact continued, supported and facilitated,
FratHouse's and Goins' illegal activities. See Ex. 11 (copies of postings from FratHouse
Facebook page indicating Ms. Bivins' and Mr. Goins' close relationship)." (Doc. #116 at
¶ 29; Doc. #116-11).

According to Defendants, this paragraph is scandalous and

inflammatory and thus must be stricken under Rule 12(f) of the Federal Rules of Civil
Procedure. (Doc. #143 at 3-4); Fed. R. Civ. P. 12(f) ("The court may strike from a pleading
. . . any redundant, immaterial, impertinent, or scandalous matter."). Under the parties'
agreement, Plaintiff will revise the paragraph to read: "Upon information and belief,
notwithstanding any purported assignment of her interest in FratHouse to Mr. Goins, Ms.
Bivins has in fact continued, supported and facilitated FratHouse's and Goins' illegal
activities." (Doc. #143 at 4). The Court finds the parties' agreement to be reasonable,
and thus strikes paragraph 29 of the First Amended Complaint and orders Plaintiff to refile
a Second Amended Complaint using the agreed upon language.
2. Exhibits 8 and 9 to the First Amended Complaint

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Next, Defendants move to strike Exhibits 8 and 9 to the First Amended Complaint
(Doc. #116-8; Doc. #116-9). Exhibit 8 consists of Defendant Goins' objections and
responses to interrogatory requests and requests for production served during
jurisdictional discovery. (Doc. #116-8). Exhibit 9 is a collection of PayPal, Inc. documents
also produced during jurisdictional discovery, and to which Plaintiff added headings, and
highlighted and redacted certain data. (Doc. #116-9). Since Exhibits 8 and 9 were
produced during discovery, Defendants argue Plaintiff improperly attached them to the
First Amended Complaint in violation of the Federal Rules of Civil Procedure and Middle
District of Florida Local Rules. (Doc. #143 at 4-5); see Fed. R. Civ. P. 5(d)(1) (stating
"the following discovery requests and responses must not be filed until they are used in
the proceedings or the court orders filing: depositions, interrogatories, requests for
documents . . . and requests for admission"); M.D. Fla. Local R. 3.03(b) ("The
interrogatories as answered or objected to shall not be filed with the Court as a matter of
course, but may later be filed by any party in whole or in part if necessary to presentation
and consideration of a motion to compel, a motion for summary judgment, a motion for
injunctive relief, or other similar proceedings."). As to Exhibit 9, Defendants also argue
that it is misleading because Plaintiff changed the substance of this exhibit by inserting
headings.
The Court need not decide whether Federal Rule of Civil Procedure 5(d)(1) and
Middle District of Florida Local Rule 3.03(b) prohibit Plaintiff from attaching the discovery
responses to the First Amended Complaint, because the parties have reached an
agreement on the matter. Specifically, Plaintiff will refile Exhibits 8 and 9 with the following
restrictions:

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

Plaintiff will limit Exhibit 8 to Plaintiff's Interrogatory Request No. 2 (including
page one (1) identifying the type of discovery request served and page seven
(7), the signature page of Plaintiff's counsel), and Defendant Goins' response
to Interrogatory Request No. 2, general objections, and signature/verification
page.



Plaintiff will clarify in Exhibit 9 that it (a) highlighted certain entries to the "IP
Summary"; (b) added two headings titled, "PayPal Account Activity Log" and
"PayPal Transaction Log," to the PayPal, Inc. documents and that the
information listed under these headings are excerpts from the account activity
log and transaction log received from PayPal, Inc.; and (c) redacted third party
mailing addresses from the information presented. In addition, Plaintiff will
redact any reference to the month and date of Defendant Bivins' birthdate and
email address of Defendant FratHouse Clothing's customers from Exhibit 9.

(Doc. #143 at 4-6). The Court finds the parties' agreement as to Exhibits 8 and 9 to be
reasonable. Accordingly, it strikes Exhibits 8 and 9 of the First Amended Complaint and
orders Plaintiff to file a Second Amended Complaint that complies with the parties'
agreement.
3. Exhibit 11 of the First Amended Complaint
Finally, Defendants move to strike Exhibit 11 of the First Amended Complaint
because it includes photographs of Defendants' minor children that were posted on
Defendant FratHouse Clothing's Facebook page.

(Doc. #116-11).

According to

Defendants, the photographs are scandalous and immaterial to the trademark
infringement claims at issue in this case. (Doc. #143 at 6). Plaintiff does not oppose the

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Court removing Exhibit 11. (Id. at 6). Accordingly, the Court strikes Exhibit 11 of the First
Amended Complaint.
In conclusion, the Court strikes paragraph 29 of the First Amended Complaint and
Exhibits 8, 9, and 11 attached thereto. The Court orders Plaintiff to file a Second
Amended Complaint and Exhibits 8 and 9 in accordance with the parties' agreement as
represented in this Order.
Accordingly, it is now ORDERED:
(1) Defendants Letisha D. Bivins, Alphonso D. Goins, and Frathouse Clothing,
LLC's Partially Unopposed Joint Motion to Strike Plaintiff's First Amended
Complaint and Exhibits 8, 9, and 11 With Leave to Refile the First Amended
Complaint and Exhibits 8 and 9 in Conformance With the Agreement of the
Parties (Doc. #143) is GRANTED.
(2) Plaintiff Delta Sigma Theta, Inc. is DIRECTED to file a Second Amended
Complaint, which is consistent with this Order and the parties' agreement, on
or before April 17, 2015. Defendants Letisha D. Bivins, Alphonso D. Goins,
and Frathouse Clothing, LLC have fourteen (14) days after Plaintiff files the
Second Amended Complaint to file a response.
(3) The Clerk of Court is directed to STRIKE the First Amended Complaint (Doc.
#116) and remove it from the record.
DONE and ORDERED in Fort Myers, Florida on this 10th day of April, 2015.

Copies: All Parties of Record

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