Harrington v. Nebraska Liquor Control Commission et al

Filing 121

MEMORANDUM AND ORDER - Plaintiff's motion to strike 91 is denied. Construed as a motion for a protective order, plaintiff's motion is denied. Construed as a motion to amend, plaintiff's motion is denied. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
SHANE HARRINGTON,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF LINCOLN, NEBRASKA, a )
Municipal Corporation, and
)
TOM CASADY, JIM PESCHONG, and )
RUSSELL FOSLER, individually )
and in their official
)
capacities as employees of
)
the City of Lincoln,
)
)
Defendants.
)
______________________________)

4:14CV3171

MEMORANDUM AND ORDER

This matter is before the Court on the plaintiffs Shane
Harrington and Kali Records, LLC’s, (hereinafter “plaintiff”
singular) motion to strike (Filing No. 91).
fully briefed by the parties.

The matter has been

See Filing Nos. 92, 95, and 98.

After review of the motion, the parties’ briefs, and the
applicable law, the Court finds as follows.
BACKGROUND
Plaintiff filed suit on August 20, 2014 (Filing No. 1).
On August 21, 2014, plaintiff filed an amended complaint (Filing
No. 4).

On February 6, 2015, after the dismissal of two parties,

the Court denied plaintiff’s motion to amend.

See Filing No. 24.

After the dismissal of additional parties and claims, plaintiff
again sought to amend (Filing No. 34).

The Court granted

plaintiff’s motion (Filing No. 36).

In response to defendants’

motion to dismiss, plaintiff filed an opposition and a cross
motion to file a “Third Amended Complaint.”

(Filing No. 44).

On

June 30, 2015, the Court granted plaintiff leave to file his
Third Amended Complaint (Filing No. 54).

The Court’s order

stated “[o]n plaintiff’s stipulation that no further amendments
will be made the Court will allow the plaintiff to file his Third
Amended Complaint.”

(Id. at 1) (internal citations omitted).

Following the filing of his Third Amended Complaint and
another motion to dismiss by defendants, plaintiff filed a motion
to “Disqualify Counsel and Declare Lincoln Municipal Ordinance
17757 Unconstitutional.”

(Filing No. 63).

The Court “construed

[plaintiff’s motion] as an improper attempt to amend the
complaint” and denied the motion (Filing No. 81).
On November 13, 2015, the Court held a planning
conference.

The plaintiff indicated to the Court that no

additional amendments to the pleadings were needed.

The Court

thereafter issued an “Amended Final Progression Order” on
November 16, 2015 (Filing No. 83).
Plaintiff now asks the Court to strike “portions of
. . . [the] Third Amended Complaint . . . pertaining to physical
and emotional distress, as they were inadvertently and
unintentionally left in the [Third Amended Complaint] . . . .”
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(Filing No. 92 at 1).

Plaintiff’s motion also requests “that the

Interrogatories and Rule 34 discovery requests pertaining to
[p]laintiff’s medical history ‘since birth’ be stricken . . . .”
(Id. at 3-4).
LAW
A. Motions to Strike Under Federal Rule 12(f)
Under Federal Rule of Civil Procedure 12(f), a “court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
R. Civ. P. 12(f).

Fed.

A court “may act on its own; or on 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.”

Id.

A district court “enjoys ‘liberal

discretion’” in the determination of a motion to strike.
Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000)
(internal quotation omitted).

“Motions to strike under Fed. R.

Civ. P. 12(f) are viewed with disfavor and are infrequently
granted.”

Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.

1977) (internal citations omitted).
B. Motions for Protective Orders Under Federal Rule 26(c)
Federal Rule of Civil Procedure 26(c) allows:
[a] party or any person from whom
discovery is sought . . . [to] move
for a protective order . . . . The
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motion must include a certification
that the movant has in good faith
conferred or attempted to confer
with other affected parties in an
effort to resolve the dispute
without court action. The court
may, for good cause, issue an order
to protect a party or person from
annoyance, embarrassment,
oppression, or undue burden or
expense . . . .
Fed. R. Civ. P. 26(c).
DISCUSSION
Plaintiff requests the Court to strike any and all
portions of the Third Amended Complaint “pertaining to physical
and emotional distress, as they were inadvertently and
unintentionally left in . . . after the Second Amended Complaint
was amended.”

(Filing No. 1 at 1).

Plaintiff argues his

intentional infliction of emotional distress claim was
“specifically removed,” that he does not seek monetary damages
for physical or emotional distress, and “[a]ny potential monetary
recovery . . . is greatly outweighed by the invasion of privacy
and inconvenience” in turning over years of medical records.
(Id.)
In response, defendants claim the plaintiff is “really
asking the Court to amend [the] [c]omplaint . . . [or]
essentially ask[ing] the [C]ourt to enter a protective order

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. . . .”

(Filing No. 95 at 1-2).

Defendants ask the Court to

deny plaintiff’s motion as untimely, unnecessary, and improper.
See Filing No. 95.
The Court finds plaintiff’s motion should be denied.
Plaintiff’s motion is untimely.

Furthermore, although brought as

a motion to strike under Fed. R. Civ. P. 12(f), it is clear
plaintiff seeks to strike references to physical and emotional
distress within his complaint in order to avoid turning over his
medical records through the discovery process.

A motion to

strike under Rule 12(f) is not the appropriate vehicle to obtain
the relief plaintiff seeks.
A motion to strike is likewise not an alternative means
to amend a complaint.

The Court notes the numerous opportunities

plaintiff has had to amend his complaint to remove “any
redundant, immaterial, impertinent, or scandalous matter.”
R. Civ. P. 12(f).

Fed.

The Court will thus deny plaintiff’s motion to

strike.
In the event plaintiff seeks a protective order under
Rule 26(c), the Court will also deny plaintiff’s motion.

Because

plaintiff has failed to provide “a certification that [he] has in
good faith conferred or attempted to confer with other affected
parties in an effort to resolve the dispute without court
action,” the Court finds plaintiff has not complied with the
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clear textual language of Rule 26(c).

Therefore, the Court will

deny plaintiff’s motion for a protective order at the present
time.
In the event plaintiff seeks to amend his complaint,
the motion is likewise denied.

The parties have made it clear to

the Court no additional amendments are needed.

Furthermore, the

Court has been clear that further amendments would not be
tolerated.

Accordingly,
IT IS ORDERED:
1) Plaintiff’s motion to strike is denied.
2) Construed as a motion for a protective order,

plaintiff’s motion is denied.
3) Construed as a motion to amend, plaintiff’s motion
is denied.
DATED this 4th day of March, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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