BBL Inc et al v. Angola City of et al

Filing 25

OPINION AND ORDER GRANTING 11 RULE 12(f) MOTION to Strike 10 Amended Complaint by Defendants Angola City of, Vivian Likes, Dean Twitchell. The Amended Verified Complaint (DE 10 ) is STRICKEN. The originally filed Complaint (DE 1 ) becomes the operative Complaint in this action. Signed by Magistrate Judge Roger B Cosbey on 5/29/13. (cer)

UNITED STATES DISTRICT COURT
NORTHER DISTRICT OF INDIANA
FORT WAYNE DIVISION
BBL, INC., ALVA J. BUTLER, and
SANDRA K. BUTLER,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
CITY OF ANGOLA, DEAN TWITCHELL,
in his official capacity, and VIVIAN LIKES,
in her individual capacity,
Defendants.

CAUSE NO. 1:13-CV-76

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Strike Amended Verified
Complaint (Docket # 11), seeking to strike the Amended Complaint in its entirety. For the
following reasons, the motion will be GRANTED.
A. Factual and Procedural Background
Plaintiffs BBL, Inc., Alva J. Butler, and Sandra K. Butler brought this action against
Defendants, the City of Angola, Dean Twitchell, and Vivian Likes, on March 19, 2013, alleging
that the City of Angola and its agents changed city ordinances to prevent their adult
entertainment business from opening. (Docket # 1.) Their original complaint was 49 pages
long, contained 281 numbered paragraphs and 34 exhibits, which added an additional 150 pages,
and brought seven counts against Defendants. (See Docket # 1.)
Before Defendants answered, Plaintiffs filed an Amended Complaint on April 10, 2013.
(Docket # 10.) Although the Amended Complaint contains the same seven counts brought in the

1

original complaint and the same parties, it is more than triple the size of the first complaint,
comprised of 168 pages (excluding the Certificate of Service) and 1047 numbered paragraphs as
well as 32 exhibits, totaling an additional 155 pages. (See Docket # 10.) Essentially the only
change to the Amended Complaint, with the exception of some minute alterations, is the addition
of 779 paragraphs, spanning 117 pages, which contain allegations related to the City’s
“secondary effects” justification for enacting the ordinances. (Am. Compl. ¶¶ 162-940.)
Defendants subsequently filed a motion to strike the Amended Complaint (Docket # 11),
arguing that it is replete with advocacy, unnecessary and excessive commentary, purported
evidence, and irrelevant facts, including a personal attack on one of Defendants’ attorneys, Scott
Bergthold, who has represented governmental entities in other adult business litigation (Mem. of
Law in Supp. of Defs.’ Mot. to Strike Am. Verified Compl. (“Defs.’ Mem. of Law”) 1-2).
Moreover, Defendants contend that the Amended Complaint violates Federal Rule of Evidence
8(a) and that requiring them to respond to it would be prejudicial. (Defs.’ Mem. of Law 2, 1112; see Defs.’ Reply Br. in Supp. of Their Mot. to Strike Am. Verified Compl. (“Defs.’ Reply”)
6-10 .) They ask the Court to strike the Amended Complaint in its entirety. (Mot. to Strike Am.
Verified Compl. 2; Defs.’ Mem. of Law 12.)
Plaintiffs respond that Rule 8 should not be used to dismiss a complaint based on length
alone, that the detailed “secondary effects” allegations are necessary as pled, and that requiring
Defendants to answer these allegations now will significantly narrow discovery and allow for the
filing of early motions for preliminary injunction or summary judgment. (See Pls.’ Br. in Opp.
to Defs.’ Mot. to Strike Am. Verified Compl. (“Pls.’ Resp.”) 6-12, 17-20.) In their reply,
Defendants reiterate that they do not seek to dismiss Plaintiffs’ claims, but only to strike the

2

Amended Complaint, leaving the original complaint in place. (Defs.’ Reply. 1.)
B. Applicable Legal Standard
Federal Rule of Civil Procedure 12(f) provides that the Court “may strike from a
pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” FED. R. CIV. P. 12(f). “Generally speaking, motions to strike portions of pleadings are
disfavored as they consume scarce judicial resources and may be used for dilatory purposes.”
Silicon Graphics, Inc. v. ATI Tech. ULC, No. 06-C-611-C, 2007 WL 5312633, at *1 (W.D. Wis.
Mar. 12, 2007) (citing Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir.
2006); Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). Thus,
motions to strike pleadings “will generally be denied unless the portion of the pleading at issue
is prejudicial.” U.S. Liab. Ins. Co. v. Bryant, No. 3:10-cv-129, 2011 WL 221662, at *1 (S.D. Ill.
Jan. 21, 2011). The decision whether to strike material under Rule 12(f) is within the discretion
of the district court. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).
C. Analysis
The Federal Rules of Civil Procedure employ a notice-based, rather than fact-based,
pleading system. Hardin v. Am. Elec. Power, 188 F.R.D. 509, 510 (S.D. Ind. 1999) (citations
omitted). Specifically, Rule 8 requires that the complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief” and that each allegation “be simple,
concise, and direct.” FED. R. CIV. P. 8(a)(2), (d)(1); accord Davis v. Ruby Foods, Inc., 269 F.3d
818, 819 (7th Cir. 2001). According to the Seventh Circuit Court of Appeals, “[t]he word
‘short’ in Rule 8(a)(2) is a relative term. Brevity must be calibrated to the number of claims and
also to their character, since some require more explanation than others to establish their

3

plausibility . . . .” Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir. 2013). At the same time,
however, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citation omitted)).
The Amended Complaint, spanning 168 pages and containing 1047 paragraphs, certainly
fulfills the “notice” function contemplated by the Federal Rules. It is organized and clearly
delineates the seven claims brought against Defendants. (See Am. Compl. ¶¶ 941-1028.) But to
get to those claims, the reader must plow through 143 pages, 117 of which consist primarily of a
recounting of Attorney Bergthold’s role in this, and other, adult business litigation and a
document-by-document attack of each supportive material the City relied upon in changing its
ordinances. (See Am. Compl. ¶¶ 162-940.) Generally, the presence of extraneous material in a
complaint that adequately performs the notice function does not warrant dismissal of that
complaint. Davis, 269 F.3d at 820-21. This is because “[p]rolixity is a bane of the legal
profession but a poor ground for rejecting potentially meritorious claims. Fat in a complaint can
be ignored, confusion or ambiguity dealt with by means other than dismissal.” Bennett v.
Schmidt, 153 F.3d 516, 517 (7th Cir. 1998).
Importantly, however, Defendants do not seek dismissal of the Amended Complaint, but
rather attempt to deal with its prolixity by means other than dismissal—by striking the Amended
Complaint and replacing it with the original complaint, which is only 49 pages and does not
contain the 117 pages challenging the City’s secondary effects justification. Although “motions
to strike are generally disfavored because they are seen as tools to delay litigation,” “where a

4

motion to strike ‘removes unnecessary clutter from the case, [it] serve[s] to expedite, not
delay.’” Hardin, 188 F.R.D. at 511 (quoting Heller Fin., Inc., 883 F.2d at 1294). Defendants’
motion to strike seeks to remove clutter from this case—evidentiary detail and argument that
may later become important, but does not belong in a complaint—thereby expediting the case
rather than delaying it.
Nevertheless, mere redundancy or immateriality is insufficient to trigger the drastic
measure of striking the pleading; the pleading must also be prejudicial to the defendant. Id.
(citations omitted). Prejudice occurs when “the challenged allegation has the effect of confusing
the issues or is so lengthy and complex that it places an undue burden on the responding party.”
Ind. Ins. Co. v. Westfield Ins. Co., No. 10 C 2660, 2010 WL 3404971, at *3 (N.D. Ill. Aug. 26,
2010) (quoting Cumis Ins. Soc., Inc. v. Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997)).
Defendants argue that requiring them to respond to the Amended Complaint is prejudicial,
necessitating that they exercise an inordinate amount of time and effort responding to the more
than one thousand paragraphs, a majority of which contain material they argue is irrelevant,
immaterial, and constituting advocacy and evidentiary detail. (Defs.’ Mem. of Law 11-12.)
They further contend that answering some of the allegations in the Amended Complaint would
require disclosure of attorney-client communications or attorney mental impressions. (Defs.’
Reply 10.)
The only substantial—and voluminous—change in the Amended Complaint is the
addition of over 775 paragraphs, spanning 117 pages, that recounts Attorney Bergthold’s role in
this case and other adult entertainment business litigation and attacks the City’s secondary
effects justification for enacting its new ordinances. The paragraphs addressing Attorney

5

Bergthold’s role in adult business regulation and litigation point to a history of apparent
animosity between counsel in this case (see, e.g., Am. Compl. ¶¶ 184 (describing Bergthold’s
current practice as almost exclusively representing governments to “eradicate what he and/or the
governmental entities consider to be ‘adult’ entertainment businesses”), 225-38, 254-55
(pejoratively referring to Bergthold’s presentation of the adverse secondary effects of adult
entertainment businesses as the “Bergthold Dog and Pony Show”)) and suggest that the more
than tripled-in-size Amended Complaint was at least partly aimed at harassing Attorney
Bergthold and his clients. This impression is further supported by the fact that the Amended
Complaint adds no new parties or claims and leaves the existing claims relatively untouched,
without any significant alterations. Any punishment for overdrafting “should be fitted to the
crime,” Davis, 269 F.3d at 82, and, here, the potential presence of a harassing motive supports
striking the Amended Complaint, cf. id. (declining to dismiss a 20-page complaint where it was
“only faintly blameworthy and entirely harmless”).
Furthermore, the secondary effects section contains countless evidentiary details
attacking the sources Attorney Bergthold allegedly relied on in developing the presentations
given to the City and the materials cited in the City’s Preambles to its ordinances and delineating
the contradictory sources intentionally omitted from them. (See, e.g., Am. Compl. ¶¶ 225-55,
364-940.) The Amended Complaint also includes a number of paragraphs that recite applicable
legal authority and argue about how it applies here. (See Am. Compl. ¶¶ 343-60.) But evidence,
theories, and speculation about the disputed events “belong (if anywhere) in an argumentative
brief and not a complaint.” Mutuelle General Francaise Vie v. Life Assurance Co. of Penn., 688
F. Supp. 386, 391 (N.D. Ill. 1988). Furthermore, evidentiary material supporting the general

6

statements in a complaint normally should not be set out in the pleadings, but rather left to be
brought to light during the discovery process. Hardin, 188 F.R.D. at 511 (quoting 5 CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1281 (2d ed. 1990
& Supp. 1999)).
Plaintiffs admittedly seek to circumvent this norm, arguing that forcing Defendants to
respond to these secondary effects allegations will significantly narrow discovery and potentially
allow them to file early motions for preliminary injunction or summary judgment. (Pls.’ Resp.
19-20.) Yet, if a defendant cannot use a motion for a more definite statement as a substitute for
discovery, Hilst v. Freedom Graphic Sys., No. 03-C-0186-C, 2003 WL 23190928, at *1 (W.D.
Wis. Aug. 27, 2003) (citations omitted), a plaintiff should be prohibited from doing the same
through a complaint. And just because the Local Rules permit only 30 requests for admissions
does not justify the use of an amended complaint to bypass the discovery process, particularly
since a party can seek to be relieved from this limit. See N.D. IND. L.R. 26-1(c) (stating that a
“party wanting to serve more requests must file a motion setting forth the proposed additional
requests and why they are necessary”). And Plaintiffs completely ignore the fact that other
discovery methods also exist.
Under the circumstances of this case, requiring Defendants to respond individually to
each of the 1047 paragraphs in the Amended Complaint—as Local Rule 10-1 requires—over
775 of which are either extraneous or not properly in the complaint to begin with, would impose
an undue burden. As Defendants point out, many of these paragraphs touch on Attorney
Bergthold’s representation of both the City in this matter as well as other governmental entities.
(See Am. Compl. ¶¶ 162-77, 265-90.) As such, requiring Defendants to respond to these

7

allegations could implicate attorney-client privileges. And numerous other paragraphs in the
secondary effects section offer merely speculative allegations about why the City may have hired
Bergthold and his law firm, or why they enacted the ordinances. Such gratuitous speculation
does not belong in a complaint. Mutuelle General Francaise Vie, 688 F. Supp. at 391.
Moreover, although prolixity is a poor ground for rejecting potentially meritorious
claims, Bennett, 153 F.3d at 517, the Amended Complaint does not contain any new claims;
thus, striking it would not entail the rejection of any claim as all claims would be preserved in
the original complaint, which will stand. This distinguishes the instant case from McGrath v.
Everest Nat’l Ins. Co., 625 F. Supp. 2d 660, 665-66 (N.D. Ind. 2008), on which Plaintiffs rely
(Pls.’ Resp. 8-9), because the plaintiff in that case, unlike Plaintiffs here, did add new claims in
her proposed 49-page amended complaint, including a fraud claim that was subject to Rule
9(b)’s heightened pleading standard. But none of these circumstances that justified a lengthy
amended complaint in McGrath are present here, and the Amended Complaint in this case is
more than three times the length of the one allowed in McGrath.
The burden on Defendants of responding to the massive Amended Complaint is further
exacerbated, as mentioned earlier, by Local Rule 10-1, which requires Defendants in their
Answer to “restate verbatim the paragraphs from the pleading they respond to” and,
“immediately following each restated paragraph, state the response to that paragraph.” N.D.
IND. L.R. 10-1(a) (emphasis added). Compliance with this rule would result in an Answer
double the length of an already bloated Amended Complaint, placing an unnecessary and undue
burden on the Court as well. As the Seventh Circuit has recognized, “[a] complaint that is prolix
and/or confusing makes it difficult for the defendant to file a responsive pleading and makes it

8

difficult for the trial court to conduct orderly litigation.” Vicom, Inc. v. Harbridge Merch.
Servs., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994) (citations omitted). The overwhelming length
of the Amended Complaint and its inclusion of inappropriate and extraneous material makes it
difficult for Defendants and the Court to proceed forward in this litigation, as it creates an undue
burden and justifies its striking. See Hardin, 188 F.R.D. at 511 (“[U]nnecessary prolixity in a
pleading places an unjustified burden on the court and the party who must respond to it because
they are forced to select the relevant material from a mass of verbiage.” (quoting Roberto’s Fruit
Market, Inc. v. Schaffer, 13 F. Supp. 2d 390, 395 (E.D.N.Y. 1998))).
Finally, Plaintiffs’ arguments, and the cases they rely upon, do not lead to a different
result in this case. For instance, Plaintiffs maintain that it is their obligation to attack each and
every predicate in the Preambles that the City relied on in enacting its ordinances. (Pls.’ Resp.
18.) But Plaintiffs do not explain why they must do so in their complaint. Once again, because
all the Federal Rules require is notice pleading, “there is absolutely no need for the [P]laintiffs to
plead evidence” or facts. Wardell v. City of Chicago, No. 98 C 8002, 99 C 1856, 2001 WL
849536, at *2 (N.D. Ill. July 23, 2001).
Further highlighting counsel’s past history, Plaintiffs contend that the failure to make
specific allegations in other cases has led Attorney Bergthold to file motions to dismiss, which
have been granted, and caused courts to fault other plaintiffs for attacking the evidentiary basis
for similar ordinances “with a club rather than a scalpel” and for not casting doubt on all of the
studies on which the municipality relied. (Pls.’ Resp. 18-19 (citing Sensations v. City of Grand
Rapids, 526 F.3d 291 (6th Cir. 2008); Keepers, Inc. v. City of Milford, __ F. Supp. 2d __, 2013
WL 1297839, at *11 (D. Conn. Mar. 30, 2013); Metro Pony, LLC v. City of Metropolis, No. 11-

9

cv-144-JPG, 2012 WL 1389656, at *11 n.2 (S.D. Ill. Apr. 20, 2012).)
In Sensations, however, the district court granted the defendants’ motion for judgment on
the pleadings, not a motion to dismiss, because the City of Grand Rapids expressly relied upon
decisions of the Supreme Court, the Sixth Circuit, Michigan courts, and other federal circuit
courts, which had upheld each of the restrictions set forth in the challenged ordinance and found
sufficient evidence of secondary effects. Sensations, Inc. v. City of Grand Rapids, No. 1:06-CV300, 4:06-CV-60, 2006 WL 5779504, at *6 (W.D. Mich. Oct. 23, 2006). Contrary to Plaintiffs’
representations, this motion was not granted because the complaint failed to include specific
allegations attacking each of the predicates the City of Grand Rapids relied upon in enacting its
ordinance. Additionally, the other two cases Plaintiffs point to were before the Court on motions
for summary judgment, Keepers, Inc., 2013 WL 1297839, at *1; Metro Pony, LLC, 2012 WL
1389656, at *1, where such evidentiary attacks on the defendants’ secondary effects justification
are appropriately brought.
Although the proper response to a motion to strike is ordinarily striking only the
offending parts, the entire pleading may be stricken if “a great deal of judicial energy would
have to be devoted to eliminating the unnecessary matter and restructuring the pleading.” Id.
(quoting 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1217). Here, the
objectionable material is in the secondary effects section, which is wholly omitted from the
original complaint. Therefore, rather than striking those portions of the Amended Complaint,
judicial energy is best conserved by striking the Amended Complaint in its entirety and allowing
the original complaint to stand.
Ultimately, the excessive and inappropriate advocacy and evidentiary detail contained in

10

the massive Amended Complaint, which is only supposed to give notice to Defendants of the
claims against them, and the presence of an original complaint that contains the same claims and
parties presented in a significantly shorter fashion, leads to the conclusion that this is “the rare
case where a motion to strike should be granted.” Abbott v. Lockheed Martin Corp., No. 06-cv0701-MJR, 2007 WL 2316485, at *2 (S.D. Ill. Aug. 13, 2007). With the Amended Complaint
stricken, the original complaint will become the operative document, thereby preventing any
delay in this litigation and further supporting the striking of the Amended Complaint. Cf. id.
(declining to strike paragraphs from a complaint when doing so would merely serve to delay the
litigation, require plaintiffs to file an amended complaint, and postpone a trial on the merits).
D. Conclusion
For the foregoing reasons, Defendants’ Motion to Strike Amended Verified Complaint
(Docket # 11) is GRANTED. The Amended Verified Complaint (Docket # 10) is hereby
STRICKEN. The originally filed Complaint (Docket # 1) therefore becomes the operative
complaint in this action.
SO ORDERED.
Enter for this 29th day of May, 2013.
S/Roger B. Cosbey
Roger B. Cosbey
United States Magistrate Judge

11