Anzaldua v. Northeast Ambulance and Fire Protection District et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Strike Defendants' Memorandum in Support of their Motion for Summary Judgment [ECF No. 37 ] is DENIED. Signed by District Judge E. Richard Webber on February 5, 2014. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHEAST AMBULANCE and
FIRE PROTECTION DISTRICT, et al.
Case No. 4:13CV01257 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on “Plaintiff’s Motion to Strike Defendants’
Memorandum in Support of their Motion for Summary Judgment” [ECF No. 37].
On July 2, 2013, Plaintiff Stevon Anzaldua (“Plaintiff”) filed a Complaint against
Northeast Ambulance and Fire Protection District (“Fire District”); Fire District Board of
Directors Derek Mays, ClarenceYoung, and Bridget Quinlisk-Dailey, in their official capacities
(collectively referred to as “Board”); Board Directors Robert Lee and Derek Mays, in their
individual capacities; Fire District Fire Chief Quinten Randolph, individually and in his official
capacity; Fire District Battalion Chief Kenneth Farwell, individually and in his official capacity;
and individual Kate Welge [ECF No. 1]. In his Complaint, Plaintiff alleged his employment with
Fire District was terminated on September 26, 2012, as a result of a conspiracy among the
defendants. In Count I, Plaintiff brought a claim pursuant to 42 U.S.C. § 1983, alleging the
termination violated his First Amendment right to free speech, against Defendants Lee, Mays,
Quinlisk-Dailey, Randolph, and Farwell (“Fire District Defendants”). Under Count II, Plaintiff
sued Fire District, Fire District Defendants, and Defendant Welge for conspiracy to violate his
constitutional rights, cognizable under 42 U.S.C. § 1983. In Counts III and IV, Plaintiff also
alleged Farwell and Welge violated federal and state computer privacy laws.
Fire District Defendants filed a Motion to Dismiss on August 26, 2013. On October 21,
2013, this Court granted, in part, Fire District Defendants’ Motion to Dismiss [ECF No. 15]. In
its Order, the Court dismissed with prejudice Counts II, III, and IV of Plaintiff’s Complaint, for
failure to state a claim. The Order also dismissed with prejudice Plaintiff’s claims brought
against individual defendants in their official capacities, and Plaintiff’s cause of action for
municipal liability against Fire District, contained in Count I of his Complaint. Because no
claims remained against Fire District, the Order dismissed the district from the action.
Additionally, the Order dismissed, as abandoned, any due process claims asserted by Plaintiff in
his Complaint, and dismissed with prejudice all claims against Defendants Clarence Young,
Bridget Quinlisk-Dailey and Quinten Randolph. The Court denied, in part, Fire Defendants’
Motion to Dismiss, finding Count I of Plaintiff’s Complaint sufficiently alleged colorable claims
against Lee, Mays, and Farwell, in their individual capacities, to survive a dismissal motion.
Plaintiff filed “Plaintiff’s Motion to Reconsider Memorandum and Order Dated October
21, 2013 (Doc.15), or Alternatively, Motion for Leave to Amend Complaint” on October 28,
2013 [ECF No. 18]. In his Motion asking the Court to reconsider its dismissal with prejudice of
Fire District and Randolph as parties, and of Counts II, III, and IV in their entirety, Plaintiff,
noted he was thus prevented him from amending his Complaint to state claims for relief, and
requested leave to file an amended complaint. Plaintiff argued justice required that he be granted
permission to amend his Complaint to address the deficiencies identified in the Court’s Order,
because the Court did not find any amendment would be futile, only that there were insufficient
factual allegations to support plausible claims for relief.
On November 27, 2013, the Court issued a Memorandum and Order, holding Plaintiff’s
Motion to Reconsider in abeyance, pending Plaintiff’s submission of a proposed amended
complaint [ECF No. 28]. Subsequently, Plaintiff timely filed a motion, seeking leave to file his
proposed Amended Complaint [ECF No. 29, 29-1]. Defendants Farwell, Lee, Fire District, and
Randolph filed a Memorandum in Opposition to Plaintiff’s Motion; and Plaintiff filed a Reply
[ECF Nos. 38, 44].
Plaintiff’s First Amended Complaint is brought against Fire District; Welge; and against
defendants Lee, Mays, Randolph and Farwell, in their individual capacities [ECF No. 29-1]. The
Complaint asserts four claims: Count I – 42 U.S.C. Section 1983 Violation of Anzaldua’s First
Amendment Right to Free Speech (against Fire District, Lee, Mays, Randolph, and Farwell);
Count II – Conspiracy to Violate Anzaldua’s Constitutional Rights Cognizable under 42 U.S.C. §
1983 (against Lee, Mays, Randolph, and Farwell); Count III – Anzaldua’s Cause of Action under
18 U.S.C. § 2707 Against Defendants Farwell and Welge; and Count IV – Anzaldua’s Cause of
Action under Section 537.525 of the Missouri Revised Statutes Against Defendants Farwell and
On December 16, 2013, Fire District, Lee, Mays, Randolph, and Farwell filed a “Motion
for Extension of Time to File Motion for Summary Judgment Based on Qualified Immunity and
Motion to File Overlength Memorandum in Support of Said Motion” [ECF No. 30]. In their
motion, these defendants anticipated their memorandum would consist of twenty (20) pages, and
thus in excess of the fifteen-page limit set forth in Local Rule 7-4.01(D). Plaintiff opposed the
motion [ECF No. 31]. The Court granted the motion, ordering any summary judgment motion to
be filed no later than December 18, 2013, and directing the memorandum not to exceed twenty
pages, exclusive of certificate of service and signature pages [ECF No. 32].
The defendants filed their Motion for Summary Judgment on December 18, 2013 [ECF
No. 33]. In conjunction with their summary judgment motion, the defendants filed a Statement
of Uncontroverted Material Facts in Support of Defendants’ Motion for Summary Judgment
[ECF No. 34], and Defendants’ Memorandum in Support of their Motion for Summary Judgment
[ECF No. 35]. The supporting memorandum totals thirty (30) pages in length, with its initial
pages labeled as “i” through “xi,” and subsequent pages labeled “1" through “19.” A footnote on
page “ii” of the memorandum states: “This recital of the facts is provided for the convenience of
the Court. Defendants are submitting herewith a Statement of Uncontroverted Material Facts in
accordance with Local Rule 7-4.01(E), which is incorporated herein by reference” [ECF No. 35
at 2]. The “Statement of Facts” section of the memorandum is set forth on pages labeled “ii”
Plaintiff filed his Motion to Strike Defendants’ Memorandum in Support of their Motion
for Summary Judgment” on December 20, 2013 [ECF No. 37]. Defendants filed their Response
on December 24, 2013 [ECF No. 39]. On the same date he filed his Motion to Strike, Plaintiff
also filed “Plaintiff’s Motion, Affidavit, and Supporting Legal Memorandum to Defer
Defendants’ Premature Motion for Summary Judgment or, in the Alternative, to Grant Additional
Time for Plaintiff to Conduct Discover and to Lift Stay on Discovery/Amend Case Management
Order for Such Purpose,” [ECF No. 36].
District courts enjoy broad discretion in enforcing their rules, but “striking a party’s
pleadings is an extreme measure and . . . [m]otions to strike . . . are viewed with disfavor and are
infrequently granted.” Stanbury Law Firm, P.S. v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000)
(internal quotation marks and citations omitted).
A “court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). As is apparent from the language of
Rule 12(f), a motion to strike may only be directed to material contained in a “pleading.” Id., see
also Coleman v. City of Pagedale, 2008 WL 161897 at *4 (E.D. Mo. Jan. 15, 2008). Pleadings
are defined as: 1) a complaint; 2) an answer to a complaint; 3) an answer to a counterclaim
designated as a counterclaim; 4) an answer to a crossclaim; 5) a third-party complaint; 6) an
answer to a third-party complaint; and 7) if the court orders one, a reply to an answer. Fed. R.
Civ. P. 7(a). Thus, memoranda ordinarily may not be the subject of a motion to strike. See
Coleman, 2008 WL at *4; Carlson Mktg. Grp., Inc., 2006 WL 2917173 (D. Minn. Oct. 11,
2006); 5C Fed. Prac. & Proc. Civ. § 1380 (3d ed.).
Plaintiff requests the Courts to strike Fire District Defendants’ Memorandum in Support
of their Motion for Summary Judgment, asserting the memorandum’s length is actually thirty
(30) pages, and not the twenty-page length the defendants were granted leave to file. In his
Motion to Strike, Plaintiff points out that the defendants numbered the first eleven (11) pages of
their supporting memorandum with lowercase Roman numerals, making the actual total of the
document’s pages to be thirty. Plaintiff argues that neither the Federal Rules of Civil Procedure
nor the Court’s Local Rules “permit a party to simply not count pages in a supporting brief to
avoid the page limitations[.]” [ECF No. 37 at 2]. He objects to the filing of the document,
asserting it was deliberately filed in violation of the local rules and the Court’s December 17,
2013 Order, and stating “this is not the first time Defendants have been less than honest in this
case” [ECF No. 37 at 2].
Without regard to whether “this is not the first time Defendants have been less than
honest in this case,” the Court agrees with Plaintiff’s conclusion concerning the proffer of the
thirty-page document. Respective counsels’ filing of motions in this case, obviously without
communicating, continues to burden the Court unnecessarily in management of this case. Here,
Defendants’ pretensive explanation of why they cannot comply with common English is
disappointing. “Twenty pages” means what it says. The attempt to excuse non-compliance is
not warmly embraced. The Court could reject the filing and require what was ordered, adopt the
Judge Hungate Rule and read only the first twenty pages, or decide to accept the abberrant filing
to reduce the work of all counsel that any other order would surely invite. The thirty-page
document will be accepted, but should not be taken as a signal that such future behavior will be
In their Response to the Motion to Strike, Defendants claim their memorandum is
actually only eighteen (18) pages, stating the included recitation of the facts was lifted directly
from Defendants’ Statement of Uncontroverted Facts, with the record citations omitted, and was
provided, as indicated in the footnote to memorandum, as a courtesy to the Court [ECF No. 39].
They contend including such a recitation is not an uncommon practice, and state their counsel
frequently does so in this district, without any previous challenge. The defendants contend
Plaintiff’s motion “serves no purpose other than to vexatiously multiply these proceedings and to
increase the burden on the Court and counsel” [ECF No. 39 at 2]. The defendants object, as
contrary to the spirit of the Rules of Civil Procedure, to Plaintiff’s assertion of any dishonest
conduct on their behalf.
As stated in Carlson, “there is no such thing as a ‘motion to strike” – at least when the
paper being targeted is a memorandum or affidavit submitted in connection with a motion for
summary judgment.” Carlson, 2006 WL 2917173 at *2. After noting the lack of authorization
for such motions in the Federal Rules of Civil Procedure and the district’s local rules, the
Carlson Court further stated: “Civil Rule 12(f) comes closest, authorizing parties to move a court
to strike certain material from a pleading. But neither a memorandum nor an affidavit is a
“pleading.” Id. at **2-3. The Court cited several cases in which district courts found motions to
strike inappropriately targeted memoranda, affidavits, or other documents that were not
“pleadings” for purpose of Rule 12(f), and warned it would deny such motions, and in
appropriate cases, possible sanction the attorneys filing them. Id. The Court explained, “In light
of what this Court and others have said about ‘motions to strike,’ an attorney has little reason to
believe that such a motion is ‘warranted by existing law.’” Id. at *3.
An argument similar to the one Plaintiff now posits was considered and rejected by this
Court in Coleman, a case where the defendants filed, with leave of the Court, a motion to strike
the plaintiff’s sur-reply to their summary judgment motion. Coleman, 2008 WL 161897. The
defendants argued that the Sur-Reply (consisting of thirty-one (31) pages) and its supporting
memorandum (consisting of fifteen (15) pages) exceeded the scope of leave requested by the
defendants. Id. at *3. This Court denied the Motion to Strike, stating, “Plaintiffs’ SurReply and Memorandum are not pleadings and may not be attacked in this manner.” Id. at *4.
The Court will deny Plaintiff’s Motion to Strike.
IT IS HEREBY ORDERED that “Plaintiff’s Motion to Strike Defendants’
Memorandum in Support of their Motion for Summary Judgment” [ECF No. 37] is DENIED.
Dated this 5th
day of February, 2014.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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