Fultz v. Plantation Bay LLC et al

Filing 23

ORDER AND REASONS granting 8 Motion to Strike Jury Demand and Rule 11 Sanctions. Paragraphs 32 and 33 of Defendant Chateau Orleans Poboys, LLC's 7 Answer are STRICKEN. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LAWRENCE FULTZ

CIVIL ACTION

VERSUS

NO: 16-1132

PLANTATION BAY, LLC ET AL

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Strike the Requests for a Jury
Trial and Rule 11 Sanctions in Defendant Chateau Orleans Poboys, LLC’s
Answer (Doc. 8). For the following reasons, the Motion is GRANTED.
BACKGROUND
This is a suit under the Americans with Disabilities Act (“ADA”).
Defendant Plantation Bay, LLC (“Plantation”) owns and operates the
Plantation Bay Shopping Center in Marrero, Louisiana. Defendant Chateau
Orleans Poboys, LLC (“Chateau”) leases space in the shopping center and
operates Chateau Orleans Poboys restaurant in the space. Plaintiff Lawrence
Fultz is disabled within the meaning of the ADA, requiring a wheelchair or
crutches for mobility.

He states that he experienced serious difficulty

accessing the goods and utilizing the services at Chateau Orleans Poboys due
to Defendants’ noncompliance with the ADA.
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He seeks declaratory and

injunctive relief directing Defendants to alter the property in compliance with
the ADA.
In its answer Defendant Chateau makes a jury demand and further
indicates that “Rule 11 sanctions may be applicable to this matter.” Plaintiff
moves to strike these portions of the answer, and Defendant Chateau opposes.
LEGAL STANDARD
A court “may strike from a pleading . . . any redundant, immaterial,
impertinent, or scandalous matter.”1 The court has the authority to act on its
own or pursuant to a “motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after being served with
the pleading.”2 Courts have considerable discretion in deciding whether to
grant or deny a motion to strike.3 However, motions to strike are generally
disfavored and rarely granted.4 The action of striking a pleading “is a drastic
remedy to be resorted to only when required for the purposes of justice.” 5 A
motion to strike generally should not be granted absent a showing of prejudice
to the moving party.6
LAW AND ANALYSIS
Plaintiffs ask the Court to strike both Defendant Chateau’s jury demand
and their reference to Rule 11 sanctions.

The Court will consider these

requests separately.

Fed.R.Civ.P. 12(f).
Id.
3 See In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1168 (5th Cir.1979).
4 Augustus v. Bd. of Pub. Instruction, 306 F.2d 862, 868 (5th Cir.1962).
5 Id. (quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822
(6th Cir.1953)).
6 See id.
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2

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I. Jury Demand
Plaintiff moves to strike Defendant Chateau’s jury demand, arguing that
trial by jury is not permitted where the Plaintiff seeks only equitable relief. In
response, Chateau has indicated that it does not dispute this premise, and
agrees to a bench trial as long as Plaintiff seeks only equitable relief. The
Court has reviewed Plaintiff’s Complaint and finds that he does not seek
damages. Accordingly, the motion to strike Chateau’s jury demand, contained
in paragraph 32 of its answer, is granted.
II. Rule 11 Sanctions
Plaintiff next asks the Court to strike paragraph 33 of Chateau’s answer,
which states “Chateau Orleans Poboys, LLC suggests to the court that Rule 11
sanctions may be applicable in this matter.”7 Rule 11(b) of the Federal Rules
of Civil Procedure provides that, upon presenting a pleading to the court, an
attorney certifies that:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery;
and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a
lack of information.8
Rule 11(c) provides that, if a party believes that Rule 11(b) has been violated,
he may move for sanctions. Such a motion “must be made separately from any

7
8

Doc. 7 at 4.
Fed. R. Civ. Proc. 11.

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other motion and must describe the specific conduct that allegedly violates
Rule 11(b).” The rule also contains a “safe harbor” provision, whereby such a
motion must be served on the allegedly offending party but not presented to
the Court for 21 days, thereby providing the party an opportunity to withdraw
the challenged pleading.
Without context or explanation, Chateau asserts that Rule 11 Sanctions
may be necessary in this matter. In response to Plaintiff’s motion to strike this
unsubstantiated assertion, Chateau asserts that, though it has not yet moved
for such sanctions, it believes Rule 11 sanctions may prove necessary because
of the fact that “plaintiff . . . has filed 12 lawsuits against various local
business, as well as Jefferson Parish, for various alleged violations of the
[ADA]” and because “[t]he law firm representing Fultz, the Bizer Law Firm,
has also brought dozens of ADA claims in the Eastern District in that same
time span.” The Court notes that these allegations fall woefully short of the
standard required to establish a violations of Rule 11. The fact that Plaintiff
has filed multiple lawsuits, without more, creates no presumption of a
violation.

Furthermore, the Court notes that there is an exceedingly

reasonable explanation for the prevalence of ADA cases filed by the Bizer Law
Firm—this is the firm’s primary area of practice.9 To allow such a nebulous
accusation of sanctionable conduct to stand would serve to undercut the “safe
harbor” provisions of Rule 11, which mandates that a party give his opponent
the opportunity to withdraw an offending pleading prior to including the
serious allegation of a Rule 11 violation in the public record. Rule 11 violations
are a serious matter, and accordingly must be plead with specificity.
Defendant is advised that flippant allegations of Rule 11(b) violations will not

9

See The Bizer Law Firm, http://www.bizerlaw.com/ (last visited August 26, 2016).

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be permitted in this Court.

Plaintiff’s motion is granted with respect to

paragraph 33 of Chateau’s Answer.
CONCLUSION
For the forgoing reasons, Plaintiff’s Motion to Strike is GRANTED.
Paragraphs 32 and 33 of Defendant Chateau’s Answer (Doc. 7) are
STRICKEN.
New Orleans, Louisiana this 29th day of August, 2016.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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