United States of America v. Rhodes

Filing 24

ORDER: Judge DeSoto's Order 22 is AFFIRMED. IT IS FURTHER ORDERED that the United States' Motion to Strike 20 is GRANTED. On or before January 20, 2023, Defendant Scott Rhodes shall file an Amended Answer that does not contain the stricken language identified. Signed by Judge Dana L. Christensen on 1/17/2023. (ASG)

Case 9:21-cv-00110-DLC-KLD Document 24 Filed 01/17/23 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
UNITED STATES OF AMERICA,

CV 21–110–M–DLC

Plaintiff,
vs.

ORDER

SCOTT RHODES,
Defendant.
Before the Court is United States Magistrate Judge Kathleen L. DeSoto’s
Order concerning the United States’ Motion to Strike. (Doc. 22.) Defendant Scott
Rhodes timely filed specific objections to the Order. (Doc. 23.) This Court must
consider any timely objections to a magistrate's order on a non-dispositive motion
and “modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” FED. R. CIV. P. 72(a); see also Johnson v. Evans, 473 Fed. Appx.
786, 786–87 (9th Cir. 2012). For the reasons discussed below, the Court affirms
Judge DeSoto’s Order.
The United States moved to strike a specific portion of Rhodes’s Answer
(Doc. 16) under FED. R. CIV. P. 12(f) “as immaterial to the claims and defenses,
impertinent to the issues involved, and scandalous.” (Doc. 20 at 3.) That portion
of Rhodes’s Answer reads as follows:
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Defendant hereby answers Plaintiff’s SLAPP suit (strategic lawsuit
against public participation) regarding anti-Jewish political speech
brought by the Jew-run DOJ (Merrick Garland) on behalf of the Jewrun FCC (Jessica Roseworcel) based on a false report document by a
Jew federal employee (Daniel Stepanicich) and prosecuted by a Jewrun prosecution team (Patrick Runkle), the captioned matter as follows:
(Doc. 16 at 2). Judge DeSoto agreed with the United States that “Rhodes’
references to the FCC, DOJ, and prosecution team as ‘Jew-run,’ and to Stepanicich
as ‘a Jew federal employee’ are anti-Semitic and have no place in the pleadings.”
(Doc. 22 at 3.) Judge DeSoto further cautioned Rhodes that “if he does not file an
Amended Answer removing the objectionable language identified above, he may
be held in civil contempt for violating a court order.” (Id.)
Rhodes raises four objections to Judge DeSoto’s Order. First, he argues that
Judge DeSoto “failed to apply judicial experience and common sense” in
determining that “the words ‘Jew’ and ‘Jewish’ are de facto ‘anti-Semitic’ and
‘scandalous.’” (Doc. 23 at 4.) Second, he argues that the Order improperly
“incorporated a decision . . . made on disputed facts” by referencing Rhodes’s
alleged robocalls containing anti-Semitic content. (Id.) Third, he argues that the
Order applied an “overbroad interpretation of [the] definitions presented in
Fantasy, Inc. v. Fogerty and Consumer SOLS. REO, LLC.” (Id. at 5.) Finally, he
argues that Judge DeSoto “failed to consider and address cited precedent that
striking a Defendant’s Answer is ‘drastic,’ and should only be done ‘in the interest
of justice.’” (Id.)
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Judge DeSoto’s Order is neither clearly erroneous nor contrary to law. The
Order properly finds support from the Ninth Circuit’s definitions of “immaterial”
and “impertinent” in Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),
and the Northern District of California’s definition of “scandalous” in Consumer
Sols. REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 2009).
Moreover, Judge DeSoto does not conclude that “Jewish” or “Jew” are de facto
anti-Semitic. Rather, the Order states that—in the particular context that the terms
were used by Rhodes in his Answer—those terms are anti-Semitic and meet the
definitions discussed above.
Judge DeSoto’s reference to Rhodes’s alleged robocall campaigns simply
provides context for the ongoing dispute and is not an improper determination of
disputed facts. Finally, although Judge DeSoto may not have addressed each of the
cases cited by Rhodes in the Order, that does not necessarily indicate that those
cases and arguments were not considered. Nor is there any indication that Judge
DeSoto was in any way biased for or against one party, as Rhodes implies.
Accordingly, IT IS ORDERED that Judge DeSoto’s Order (Doc. 22) is
AFFIRMED.
IT IS FURTHER ORDERED that the United States’ Motion to Strike (Doc.
20) is GRANTED. On or before January 20, 2023, Defendant Scott Rhodes shall
file an Amended Answer that does not contain the stricken language identified
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above.
DATED this 17th day of January, 2023.

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