Blake v. Batmasian et al
ORDER AND OPINION denying #292 Motion for Leave to File Supplement; granting in part and denying in part #179 Motion to Strike ; granting #281 Motion to Strike ; denying #281 Motion for Sanctions. Signed by Judge Kenneth A. Marra on 2/27/2017. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-81222-CIV-MARRA/MATTHEWMAN
STACEY BLAKE, and others similarly situated,
JAMES BATMASIAN, an individual d/b/a
Investments Limited, and individually,
and MARTA BATMASIAN, an individual
d/b/a Investments Limited and individually,
and LSA MANAGEMENT INC., a Florida corporation,
ORDER AND OPINION ON MOTIONS TO STRIKE
THIS CAUSE is before the Court upon Defendant’s Motion to Strike Immaterial,
Impertinent and Scandalous Matter From Third Amended Complaint [DE 179] (“Second
Motion to Strike”); Defendants James and Marta Batmasian’s Motion to Strike and/or
Exclude Supplemental Filing by Plaintiff and Request for Sanctions Against Plaintiffs’
Counsel [DE 281] (“Third Motion to Strike”); and Plaintiffs’ Motion for Leave to File
Supplement Nunc Pro Tunc [DE 292]. The Court has carefully considered all relevant
filings, including the motions, responses, replies, supplements, notice of authority,
and is otherwise fully advised in the premises.
Standard of Review1
The Federal Rules of Civil Procedure provide that “the court may order
stricken from any pleading ... any redundant, immaterial,2 impertinent3 or
scandalous4 matter.” Fed. R. Civ. P. 12(f). The purpose of a motion to strike is to
clean up the pleadings, remove irrelevant or otherwise confusing materials, and avoid
unnecessary forays into immaterial matters. Liberty Media Holdings, LLC v. Wintice
Group, Inc., No. 6:10–cv–44–Orl–19GJK, 2010 WL 2367227, *1 (M.D. Fla. June 14,
2010); Hutchings v. Fed. Ins. Co., 2008 WL 4186994 at *2 (M.D. Fla. Sept. 8, 2008). It
is not intended to procure the dismissal of all or part of a complaint. Williams v.
Delray Auto Mall, Inc., 289 F.R.D. 697, 700 (S.D. Fla. 2013). Granting a motion to
strike is a drastic remedy and is disfavored by the courts. Nash v. O.R. Colan Group,
LLC, No. 12–60759–CIV, 2012 WL 4338817, *1 (S.D. Fla. Sept. 20, 2012) (citing
Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla.
This not being the first order on a motion to strike in this case, the Court
assumes the parties are familiar with the instant standard. Nonetheless, since
Defendants make several arguments that are not in line with this standard, such as
allegations should be stricken because they do “not relate to any disputed issue in
this action,” the Court reiterates the standard as a reminder.
An allegation is immaterial if it has no value in developing the issues of the
case. Oaks v. City of Fairhope, Alabama, 515 F. Supp. 1004, 1032 (S.D. Ala. 1981)
(citing 2A, Moore's Federal Practice P 12.21(1) at 2420 (2d ed. 1979)).
An allegation is impertinent if it is irrelevant to the issues and which are not
properly in issue between the parties Id.; 2 Moore’s Federal Practice, pp. 2312-13.
A matter is scandalous if it is both grossly disgraceful (or defamatory) and
irrelevant to the action or defense. Black’s Law Dictionary.
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2002)); Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F. Supp. 2d 1354, 1361
(S.D. Fla. 2009). If there is any doubt as to whether under any contingency the
matter may raise an issue, the motion should be denied. Therefore, a motion to
strike will be granted only if the matter sought to be omitted has no possible
relationship to the controversy, may confuse the issues, or otherwise prejudice a
party. 2 James W. Moore et al., Moore’s Federal Practice ¶ 12.21, at 2317 (2d ed.
In the Second Motion to Strike,5 Defendants object to certain allegations
contained within paragraphs 39, 42, 52 and 95 of the Third Amended Complaint (DE
173). It is asserted that these allegations are irrelevant and have no purpose other
than to disparage, harass, belittle, and embarrass the Defendants and their counsel,
and to inflame and prejudice the trier of fact against Defendants.
Paragraph 39 reads:
The Batmasians have gross revenue which exceeds $500,000 for each of
the past three (3) years, and as of December 31, 2010 claimed to have
total assets $1,676,635,926, and it has only grown since then, and the
vast majority of these assets consist of real estate owned by the
Batmasians jointly or in the name of Marta Batmasian.
DE 173. Defendants argue that this paragraph should be stricken because “it does not
relate to any disputed issue in this action[.]” DE 268 at 3. Defendants also object to
The Court granted in part and denied in part Defendants’ [First] Motion to
Strike. See Order at DE 137.
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the allegations as to their personal wealth and the allegation that “it has only grown
since then,” asserting these allegations are “immaterial and impertinent to the FLSA
claim[,] . . . and serve[s] no other purpose than to appeal to class bias.” DE 179 at 7.
These arguments are rejected. The fact that Defendants now admit that the
FLSA applies to them under enterprise coverage because their annual gross volume of
business is not less than $500,00 does not mean that Plaintiffs allegation of such a key
element of their claim should be stricken. See 29 U.S.C. § 203(s)(1). In addition,
Defendants’ objections to allegations regarding the Batmasians’ personal wealth is
rejected. As previously stated in this Court’s ruling on the First Motion to Strike,
“allegations regarding the personal financial worth of the Batmasians is directly
relevant to the establishment of either individual or enterprise coverage.” DE 137 at
4. Concerns about inflaming and prejudicing the trier of fact against Defendants is
without foundation. The jury is only exposed to evidence admitted at trial.
The Court is next directed to Footnote 1 to Paragraph 42, and Paragraph 52,
42(1). The Defendant disputes that James Baker was their controller and are
taking the position that he was their chief financial officer, but Baker
was never listed as a chief financial officer on any corporate or
partnership papers filed with the State of Florida, and witness George
Sigalos knows that Baker was the controller and not the chief financial
officer, because the Batmasians introduced Baker as being their
controller to him on more than one occasion.
The Batmasians have the power to hire and fire and exercise it
regularly, as they fired James Baker.
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DE 173 (emphasis added).
Defendants argue that these allegations as to non-party James Baker are
completely irrelevant, and demonstrate a bad faith attempt by Plaintiffs’ counsel to
interject issues into this case that are only relevant to another case where Mr. Baker
is suing the Batmasians.
As far as the footnote is concerned, the Court finds that it is inappropriate for
Plaintiffs to state or agrue in a Complaint, particularly in a footnote, Defendants’
position regarding a contested issue. Accordingly, footnote 1 to paragraph 42 is
stricken. As far as alleging that the Batmasians fired James Baker, the Court finds
unpersuasive Defendants’ argument that this allegation is “completely irrelevant and
immaterial to this case.” It is simply an example of the alleged power and authority
the Batmasians have. There being no valid reason for striking this part of paragraph
52, the motion to strike it is denied.
The final alleged immaterial, impertinent and scandalous paragraph reads as
The willfulness includes deliberate violations of the Fair Labor Standards
Act, as the Defendant has been sued off and on over the years for
overtime, has not denied that it was the employer of its employees, and
settled the cases, and the memorandum from Batmasian suggests that
he is violating the FLSA intentionally. Further, the Defendant employed
numerous workers performing manual labor to modify and rehabilitate
tenant space, and the Defendant refused to pay any of them overtime,
so the Defendant paid these workers for their first 40 hours, and any
overtime hours worked are paid at a straight-time rate by John L.
Management, L.L.C., which is a limited liability company owned by John
Lopresti, who is a close personal friend of the Defendant, even though
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all of the work is performed for and the laborers are employed by the
Compl. ¶ 95 (DE 173). Defendants acknowledge that prior similar suits potentially
may have relevance to the issue of willfulness. They assert, however, that
allegations in the first sentence of paragraph 95 “do not sufficiently allege that there
were any similar suits.” Additionally, Defendants assert the fact that those prior
similar suits were settled is irrelevant and serves only to besmirch and prejudice the
them before the trier of fact. Defendants also take issue with the second sentence
which refers to “manual laborers” who allegedly were not paid overtime. Defendants
claim there has been no mention of “manual laborers” in this action, this action has
been limited to commercial leasing agents, and neither John L. Management, LLC nor
Mr. Lopresti have been named as a party in this action.
The Court rejects these arguments. Reference to having settled prior similar
suits does not have a prejudicial effect at the pleadings stage. “Prejudice results
when the matter complained of has the effect of confusing the issues or where it is so
lengthy and complex that it places an undue burden on the responding party.” S.D.
v. St. Johns County Sch. Dist., No. 3:09-CV-250-J-20TEM, 2009 WL 1941482, at *3
(M.D. Fla. July 7, 2009) (internal citation omitted). Because Defendants’ concern
over the issue of settlement concerns a jury's reaction to the information at a later
stage of litigation, the allegation of settlement does not confuse the issues or place
an undue burden on Defendants at the pleadings stage. The matter of prejudice is
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raised prematurely and would be better addressed at the motion in limine stage.
Harris v. Torus Nat. Ins. Co., 2014 WL 3053257, at *3 (M.D. Fla. 2014).
The final objection to paragraph 95 is regarding the reference to manual
laborers who allegedly were not paid overtime as mandated. Defendants argue these
allegations are not only irrelevant, but highly salacious and scandalous and have been
included for the sole purpose of imputing wrongdoing on behalf of the Batmasians in
their general business practice with respect to individuals who are not part of this
action. Defendants assert the Court “should note that there has been no discovery on
these issues and the discovery period is now closed . . .” DE 268 at 8 (emphasis in
Plaintiffs respond that these allegations relate “to Defendants’ pattern and
practice of failing to pay its employees compensation for hours worked in excess of
forty (40) hours per week, which is unquestionably relevant to whether or not the
Defendants knew its conduct was prohibited and intentionally devised a scheme to
attempt to circumvent federal employee compensation statutes.” DE 241 at 12. The
Court agrees that these allegations have to do with knowledge of the overtime laws
and is merely alleged as an example of how Defendants previously knew about and
avoided complying with the FLSA. Thus, no portion of paragraph 95 will be stricken.
Defendants’ Third Motion to Strike seeks to exclude from the Court’s
consideration Plaintiffs’ Supplement (see DE 279) in Support of Their Response to the
above addressed Second Motion to Strike. Plaintiffs then filed a Motion for Leave to
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File Supplement Nunc Pro Tunc. “Defendants seek to strike the Improper Filing
because (i) it has been improperly filed procedurally, and (ii) it contains nothing
more than additional irrelevant, impertinent and immaterial statements by Plaintiff’s
counsel (with no any [sic] legal authority whatsoever) intended purely to besmirch
defense counsel.” (emphasis in original). DE 281 at 3.6
Plaintiffs state that the filing was intended to supplement the issue concerning
whether a reference to James Baker in the Complaint should be stricken, which
allegation Plaintiffs argue should have to be admitted or denied. Plaintiffs argue that
“[w]hat Baker’s job title was is germane to this litigation, as is whether he was an
independent contractor or employee.” DE 293 at 8. Presumably Plaintiffs are
referring to the footnote which has been stricken from the Complaint as discussed
Irrespective of its content, the supplement is, in effect, a second response
brief, which is improper. Plaintiffs may not add pages or supplemental arguments
once they have filed their response. Moreover, the motion for leave to file
supplement nunc pro tunc provides no argument why the Court should allow Plaintiffs
permission to file a second response. Plaintiffs merely state they did not think
permission was required. Permission is required to file what is, in essence, a second
As far as counsel’s failure to confer with opposing counsel prior to filing the
supplement pursuant to Local Rule 7.1(a)(3), suffice it to say that neither side can
claim to have perfectly complied with the pre-filing good faith conferral
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response brief. Therefore, in accordance with the conclusions made herein, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Strike Immaterial,
Impertinent and Scandalous Matter From Third Amended Complaint [DE 179] is
granted in part and denied in part as detailed above; Defendants James and Marta
Batmasian’s Motion to Strike and/or Exclude Supplemental Filing by Plaintiff and
Request for Sanctions Against Plaintiffs’ Counsel [DE 281] is granted, but the request
for sanctions is denied; and Plaintiffs’ Motion for Leave to File Supplement Nunc Pro
Tunc [DE 292] is denied.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 27th day of February, 2017.
KENNETH A. MARRA
United States District Judge
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