SEBUNYA v. HOLDER

Filing 24

MEMORANDUM DECISION AND ORDER ON MOTION TO STRIKE denying 13 Motion to Strike By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MOSES ALI SEBUNYA,

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Plaintiff
v.
ERIC H. HOLDER, JR.,
Attorney General,
U.S. Department of Justice,
Defendant

Civil No. 2:12-cv-67-GZS

MEMORANDUM DECISION AND ORDER ON MOTION TO STRIKE
On September 27, 2012, the plaintiff filed the instant motion to strike portions of the
defendant’s answer.

See Plaintiff’s Motion To Strike Portions of Defendant’s Answer

(“Motion”) (ECF No. 13). The defendant thereafter sought and was granted permission to
amend his answer, see ECF Nos. 14-15, filing an amended pleading that addressed many of the
plaintiff’s concerns, see Defendant’s First Amended Answer (“Amended Answer”) (ECF No.
16); Defendant’s Opposition to Motion To Strike (“Opposition”) (ECF No. 20) at 1-2; Plaintiff’s
Reply in Support of Motion To Strike Portions of Defendant’s Answer (“Reply”) (ECF No. 23)
at 1. Because the Amended Answer moots many points raised by the plaintiff, and the rest are
without merit, the Motion is denied.
I. Applicable Legal Standards
The plaintiff moves pursuant to Federal Rule of Civil Procedure 12(f) to strike portions of
the answer on the basis of non-compliance with Federal Rule of Civil Procedure 8. See Motion
at 1. Pursuant to Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Rule 8

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provides, in relevant, part, that a party responding to a pleading “must . . . admit or deny the
allegations asserted against it by an opposing party.” Id. 8(b)(1)(B). “A party that intends in
good faith to deny only part of an allegation must admit the part that is true and deny the rest.”
Id. 8(b)(4). “A party that lacks knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the effect of a denial.” Id. 8(b)(5).
This court has observed:
Rule 12(f) motions have not been commonplace either in this Circuit or in this
District. According to the First Circuit, that may be explained by the fact that
such motions are narrow in scope, disfavored in practice, and not calculated
readily to invoke the court’s discretion. . . . The rationale provided by the Second
Circuit is . . . quite sound:
The Federal Rules of Civil Procedure have long departed from the
era when lawyers were bedeviled by intricate pleading rules and
when lawsuits were won or lost on the pleadings alone. Thus the
courts should not tamper with the pleadings unless there is a strong
reason for so doing.
Ashey v. Lily Transp. Corp., No. CIV. 01-57BS, 2001 WL 705804, at *1 (D. Me. June 18, 2001)
(citations and internal quotation marks omitted). Motions to strike are not only disfavored but
also “are rarely granted absent of showing of prejudice to the moving party.” Andretta v. Bath
Iron Works Corp., No. 01-247-P-C, 2002 WL 576033, at *1 (D. Me. Apr. 12, 2002) (rec. dec.,
aff’d May 13, 2002) (citation and internal quotation marks omitted).
II. Discussion
The plaintiff seeks to strike four categories of paragraphs in the defendant’s answer, as
well as four affirmative defenses. See generally Motion. As a general matter, as the defendant
observes, see Opposition at 3, the plaintiff’s objections do not implicate the bases for striking
pleadings pursuant to Rule 12(f): that they contain “redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). This, alone, constitutes sufficient reason to deny the

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Motion. However, in the alternative, I consider the plaintiff’s specific points, concluding for the
reasons that follow that they are either mooted by the Amended Answer or are without merit.
A. Category One: Allegations About Documents
The plaintiff first seeks to strike a category of answers consisting of paragraphs 5, 6, 50,
55, 61, 63, and 92. See Motion at 1. The defendant changed none of these paragraphs in his
Amended Answer. Compare Defendant’s Answer to Complaint (“Original Answer”) (ECF No.
5) ¶¶ 5, 6, 50, 55, 61, 63, 92 with Amended Answer ¶¶ 5, 6, 50, 55, 61, 63, 92; see also
Opposition at 4.
The plaintiff faults the defendant for stating, in the above-referenced paragraphs, that “the
document speaks for itself” and refusing to admit allegations in the complaint about the content
of documents even when the complaint quotes directly from them. See Motion at 1. He
contends that these refusals violate the requirement of Rule 8(b)(4) that a defendant must admit
in part any allegation that accurately quotes from a document or makes accurate allegations
concerning it. See id. at 1-2; see also, e.g., State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D.
276, 279 (N.D. Ill. 2001) (“Another unacceptable device, used by lawyers who would prefer not
to admit something that is alleged about a document in a complaint (or who may perhaps be too
lazy to draft an appropriate response to such an allegation), is to say instead that the document
‘speaks for itself.’ This Court has been attempting to listen to such written materials for years (in
the forlorn hope that one will indeed give voice) – but until some such writing does break its
silence, this Court will continue to require pleaders to employ one of the three alternatives that
are permitted by Rule 8(b) in response to all allegations about the content of documents (or
statutes or regulations).”); Chicago Dist. Council of Carpenters Pension Fund v. Balmoral
Racing Club, Inc., No. 00 C 2375, 2000 WL 876921, at *1 (N.D. Ill. June 26, 2000) (“No reason

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appears why Balmoral should not respond by admitting any allegation that accurately describes
the content of whatever part of a document is referred to.”).
The defendant denies in part or in whole each of the paragraphs at issue on the basis that
the plaintiff inaccurately quoted and/or characterized the underlying documents. See Amended
Answer ¶¶ 5, 6, 50, 55, 61, 63, and 92; Opposition at 4-5. As the defendant observes, see
Opposition at 4, the plaintiff does not provide the court with the documents at issue, preventing
the court from assessing the accuracy of his quotations and characterizations. The defendant
concedes that most of the misquotations are relatively minor but takes the position that a quoted
paragraph or sentence constitutes one allegation, namely, that the document says “X,” rather than
a multi-part allegation that a defendant must parse to identify which portions are accurate and
which are not. See id. at 8 n.3. Finally, the defendant argues that the plaintiff, who has
possession of all of the underlying documents and can easily prove their contents, suffers no
prejudice from the denial of his allegations regarding them. See id. at 3, 5.
The plaintiff rejoins that, in correspondence between counsel, he did identify prejudice –
that the defendant’s evasive responses would increase the cost of discovery. See Reply at 4. He
argues that Rule 8(b)(4) “does not permit this gamesmanship approach to crafting an answer to
deny any allegation that is not 100% accurate.” Id.; see also id. at 1 (“When a defendant violates
the pleadings rules and files an evasive answer, it forces the plaintiff unnecessarily to utilize
discovery devices to prove what the defendant should have admitted in its answer.”).
I agree with the defendant that Rule 8(b)(4) cannot reasonably be read to require a
defendant, faced with a block quotation from a document in one paragraph of a complaint, to
deny only those portions that are misquoted or mischaracterized and admit the rest. In any event,
even assuming dubitante that the rule imposes such a requirement, I am at a loss to understand

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how a failure to admit that a document is partially accurately quoted or characterized inflates the
cost of discovery: ultimately, there can be no real dispute that the document says what it says. In
any event, any added cost is fairly borne by a plaintiff when the plaintiff failed in the first
instance to accurately quote or characterize a document.
The motion to strike paragraphs 5, 6, 50, 55, 61, 63, and 92 accordingly is denied.
B. Category Two: Allegations About Parties, Jurisdiction, Venue
The plaintiff next seeks to strike a category of answers consisting of paragraphs 8-11 and
99. See Motion at 2. The Amended Answer corrects the defendant’s complained-of failure to
admit or deny paragraphs 10, 11, and 99, mooting the Motion as to those responses. Compare
Original Answer ¶¶ 10-11, 99 with Amended Answer ¶¶ 10-11, 99; see also Motion at 2-3;
Opposition at 5-6.
The defendant rewords paragraphs 8 and 9 of his answer but continues to maintain that
no response is required. Compare Original Answer ¶¶ 8-9 with Amended Answer ¶¶ 8-9; see
also Opposition at 5-6. The plaintiff does not respond to this point in his reply, seemingly
conceding the point. See generally Reply. In any event, the defendant is correct that paragraph 8
of the complaint, which states that the plaintiff sues the defendant in his official capacity, and
paragraph 9, which states that the plaintiff demands a jury trial, see Complaint and Demand for
Jury Trial and Injunctive Relief Sought (“Complaint”) (ECF No. 1) ¶¶ 8-9, are not “allegations
asserted against” the defendant that he must admit or deny for purposes of Rule 8(b)(1)(B).
Finally, as the defendant alternatively argues, see Opposition at 6, the plaintiff is not
prejudiced by any failure to admit or deny these statements. The plaintiff knows that he is suing
the defendant in his official capacity and that he demands a jury trial.
implicated.

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No discovery is

The motion to strike is denied on the basis of mootness as to paragraphs 10, 11, and 99,
and on the basis of lack of merit as to paragraphs 8 and 9.
C. Category Three: Allegations as to Which the Defendant Disclaims Knowledge
The plaintiff next seeks to strike a category of answers consisting of paragraphs 12, 16,
19, 23, 24, 28, 30, 36, 37, 39, 42, 49, 51, 52, 69, 71, 72, 83, 91, 96, 97, and 98. See Motion at 3.
The Amended Answer corrects the defendant’s complained-of denial of the following paragraphs
of the complaint based on an asserted lack of knowledge or information sufficient to form a
belief as to their truth: paragraphs 12, 16, 23, 24, 28, 30, 36, 37, 39, 42, 83, 91, 96, 97, and 98.
Compare Original Answer ¶¶ 12, 16, 23, 24, 28, 30, 36, 37, 39, 42, 83, 91, 96-98 with Amended
Answer ¶¶ 12, 16, 23, 24, 28, 30, 36, 37, 39, 42, 83, 91, 96-98; see also Motion at 3-5;
Opposition at 6. This moots the Motion as to those paragraphs.1
With respect to the remaining paragraphs, the plaintiff argues that the matters alleged
were either within the defendant’s knowledge or could have been ascertained with reasonable
effort. See Motion at 3-5; see also, e.g., American Photocopy Equip. Co. v. Rovico, Inc., 359
F.2d 745, 746-47 (7th Cir. 1966) (party may not claim lack of sufficient knowledge or
information when the matter at issue is clearly within its own knowledge); Djourabchi v. Self,
240 F.R.D. 5, 12 (D.D.C. 2006) (before answering complaint, a party must make a reasonable
effort to determine whether information is available to it).
Nonetheless, the defendant offers reasonable explanations as to why this is not so with
respect to the following:

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The defendant mistakenly states that the Amended Answer moots the plaintiff’s concerns as to all of the
paragraphs in this category except for paragraphs 19, 69, 71, and 72. See Opposition at 6. The defendant made no
changes to paragraphs 49, 51, and 52 of his answer and, hence, did not moot the plaintiff’s concerns as to those
paragraphs. Compare Original Answer ¶¶ 49, 51, 52 with Amended Answer ¶¶ 49, 51, 52.

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1.

Paragraph 19 (alleging that, as of April 2008, the plaintiff had been successfully

employed as a National Equal Rights Cadre for the U.S. Department of Homeland Security’s
Federal Emergency Management Agency (“FEMA”) for more than 10 years, see Complaint
¶ 19): The United States Department of Justice (“DOJ”) does not have the ability to confirm the
fact and quality of the plaintiff’s work for an agency in a different cabinet department without an
unreasonable degree of effort. See Opposition at 6-7.
2.

Paragraphs 69, 71, and 72 (concerning the claims of Ondray Harris, then director

of the DOJ’s Community Relations Service (“CRS”), regarding a check that he performed of the
plaintiff’s references, see Complaint ¶¶ 69, 71, 72): Although these allegations evidently are
based on statements that Harris made during a 2010 deposition, Harris is no longer an employee
of CRS or any other DOJ component, and the DOJ does not have information or knowledge as to
what Harris now claims, nearly two years later. See Opposition at 7. Had the plaintiff alleged
that Harris made these claims during his 2010 deposition, the defendant would have admitted the
allegations to the extent that they accurately reflected Harris’s deposition testimony. See id.
In his reply brief, the plaintiff continues to take issue with paragraphs 69, 71, and 72,
stating that the defendant merely speculates that Harris may have changed his testimony since
2010 and, in any event, the defendant should have at least admitted that these allegations contain
true statements of Harris’s claims as of his 2010 deposition, rather than completely denying
them. See Reply at 4-5. Nonetheless, the plaintiff chose to word these allegations in the present
tense. See Complaint ¶¶ 69, 71, 72 (“Director Harris claims that . . . .”). The defendant
reasonably denied these allegations based on his lack of information or knowledge as to what
Harris, who is no longer a DOJ employee, currently claims. He had no obligation to admit that
Harris made those claims during his deposition in 2010, which was not what the plaintiff alleged.

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Paragraphs 49 and 51 of the complaint concern New York Times articles that the plaintiff
read in July 2008, and paragraph 52 concerns his asserted awareness that former President
George W. Bush had expressed hostility toward the NAACP and that Harris was appointed to his
position by President Bush. See Complaint ¶¶ 49, 51, 52. The plaintiff does not explain how the
defendant could be expected to possess, even with reasonable effort, information or knowledge
regarding the plaintiff’s reading of the New York Times, the contents of the 2008 articles at issue,
or the plaintiff’s state of knowledge regarding President Bush or the appointment of Harris.
In any event, as the defendant alternatively argues, see Opposition at 7, the plaintiff fails
to demonstrate any cognizable prejudice from the denial of the paragraphs at issue, which
concern either (i) matters within his own knowledge or (ii) deposition testimony or newspaper
articles, the contents of which are readily provable.
The motion to strike is denied on the basis of mootness as to paragraphs 12, 16, 23, 24,
28, 30, 36, 37, 39, 42, 83, 91, 96, 97, and 98, and on the basis of lack of merit as to paragraphs
19, 49, 51, 52, 69, 71, and 72.
D. Category Four: Allegations That Should Have Elicited Partial Admission
The plaintiff also seeks to strike a category of answers consisting of paragraphs 2, 56, and
88. See Motion at 5. The Amended Answer corrects the defendant’s complained-of failure to
admit the plaintiff’s allegation in paragraph 2 that he was interviewed by the CRS Regional
Director for New England and the CRS Deputy Director, mooting the Motion as to that
paragraph. Compare Original Answer ¶ 2 with Amended Answer ¶ 2; see also Motion at 5;
Opposition at 8. However, the defendant did not alter paragraphs 56 or 88. Compare Original
Answer ¶¶ 56, 88 with Amended Answer ¶¶ 56, 88.

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The plaintiff complains that the defendant denied those paragraphs in their entirety even
though they accurately quote verbatim from the plaintiff’s emails. See Motion at 5. However,
the defendant argues, as he did with respect to paragraphs in the first category that he declined to
modify, that (i) the emails are misquoted and need not be parsed to determine which portions are
accurate, (ii) the court has not been provided with documentation that would permit it to assess
whether the emails are accurately quoted, and, (iii) in any event, his denial of these allegations
works no prejudice to the plaintiff. See Opposition at 8. For all of the reasons stated in my
analysis of the first category of answers, I agree.
The motion to strike hence is denied as to paragraph 2 on the basis of mootness and as to
paragraphs 56 and 88 on the basis of lack of merit.
E. Affirmative Defenses Nos. 1, 2, 10, and 12
In his Amended Answer, the defendant addresses all points made with respect to his
affirmative defenses, mooting the Motion with respect to them. Compare Original Answer at 11
with Amended Answer at 10-11; see also Motion at 5-6; Opposition at 8-9. The motion to strike
four affirmative defenses accordingly is denied on the basis of mootness.
III. Conclusion
For the foregoing reasons, the Motion is DENIED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 30th day of November, 2012.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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