Oglesby v. Lesan et al

Filing 41

ORDER denying Plaintiff's Motion to Strike Defendant Amy Lesan's answer and Defendant Chad Hein's amended answer and counterclaim, (Filing No. 28 ), and on Defendant Amy Lesan's Motion to Strike Plaintiff's demand for a jury trial. (Filing No. 30 ). Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT OGLESBY,
4:16CV3189

Plaintiff,
vs.

MEMORANDUM AND ORDER
AMY LESAN, and CHAD HEIN,
Defendants.
This matter is before the court on Plaintiff’s Motion to Strike Defendant
Amy Lesan’s answer and Defendant Chad Hein’s amended answer and
counterclaim, (Filing No. 28), and on Defendant Amy Lesan’s Motion to Strike
Plaintiff’s demand for a jury trial. (Filing No. 30). For the following reasons both
motions will be denied in their entirety.

BACKGROUND

Plaintiff Robert Oglesby filed his complaint against Defendants Amy Lesan
and Chad Hein on December 15, 2016, alleging claims under 42 U.S.C. § 1983.
(Filing No. 1). Plaintiff’s complaint alleges Defendants Lesan and Hein violated
his Fourth Amendment right to be free from unreasonable searches and
seizures. (Filing No. 1). Specifically, Plaintiff claims that on January 28, 2013,
Defendants had no justification to detain Plaintiff and used unreasonable force in
detaining and arresting him. (Filing No. 1). Plaintiff has sued Lesan and Hein in
their individual capacities only. The Complaint states Lesan and Hein were at all
relevant times duly appointed and acting officers, servants, employees, and
agents for Lancaster County, Nebraska, (“County”), and the City of Lincoln,
Nebraska, (“City”), respectively. Plaintiff alleges “[Defendants’] acts and

omissions described herein were under the color and authority of the laws,
statutes, ordinances, regulations, customs and/or usages of the State of
Nebraska . . . .” (Filing No. 1 ¶¶ 2, 3 at CM/ECF p. 1). Plaintiff seeks
compensatory and punitive damages, along with his attorney fees for litigating
this action. On March 13, 2017, both defendants filed Answers to Plaintiff’s
complaint. (Filing Nos. 10 & 11). Shortly thereafter, Plaintiff filed a motion to
strike Defendants’ answers. (Filing No. 16).

On March 30, 2017, the City filed a motion to intervene in the lawsuit
pursuant to Federal Rule of Civil Procedure 24(a)(2). (Filing No. 13). The City’s
proposed Complaint in Intervention claimed that on January 28, 2016, Plaintiff
Oglesby resisted arrest and caused personal injury to Defendant Hein, and as a
self-insured workers’ compensation provider to Defendant Hein, the City claimed
it had an interest in the action. (Filing Nos. 13 & 13-1). Nearly a week later, the
City moved to withdraw its motion to intervene, explaining Defendant Hein
intended to file an amended answer asserting his own counterclaim against
Plaintiff for injuries and damages, (Filing No. 18), and on the same day,
Defendant Hein filed a motion for leave to file an amended answer. (Filing No.
19). The court entered a text order granting the City’s motion to withdraw and
Hein’s motion for leave, and denied Plaintiff’s motion to strike without prejudice to
re-filing. (Filing No. 21).

Plaintiff has now moved to strike Defendant Lesan’s answer and
Defendant Hein’s amended answer and counterclaim. (Filing No. 28). Defendant
Lesan has moved to strike Plaintiff’s demand for a jury trial. (Filing No. 30).

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ANALYSIS

I.

Plaintiff’s Motion to Strike
Plaintiff requests that the court strike portions of both Defendants’ answers

under Federal Rule of Civil Procedure 12(f), arguing the answers contain
redundant, immaterial, impertinent, and scandalous allegations.

Under Rule 12(f) "the court may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter." Fed. R. Civ. P. 12(f). While the court enjoys “liberal discretion” in
determining whether to strike a party’s pleadings, doing so is an “extreme
measure” and thus motions to strike under Rule 12(f) are “infrequently granted.”
Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000).
The purpose of a Rule 12(f) motion to strike is to “minimize delay,
prejudice, and confusion.” Infogroup, Inc. v. Database LLC, 95 F. Supp. 3d 1170,
1195 (D. Neb. 2015)(citations omitted). But when abused, Rule 12(f) often
produces the opposite effect by creating contention and delaying the
proceedings. See Stanbury, 221 F.3d at 1063. Accordingly, a motion to strike
under Rule 12(f) will not be granted “in the absence of some showing of
prejudicial harm” to the movant. Vernor’s Ginger Ale Bottling Corp. v. Hires-Ideal
Bottling Co., 8 F.R.D. 240, 241–42 (D. Neb. 1948).1 Absent a showing of

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See also Charles Alan Wright & Arthur R. Miller, 5C Fed. Prac. & Proc.
Civ. § 1380)("Both because striking a portion of a pleading is a drastic remedy
and because it often is sought by the movant simply as a dilatory or harassing
tactic, numerous judicial decisions make it clear that motions under Rule 12(f)
are viewed with disfavor by the federal courts and are infrequently granted. . . .
Thus, in order to succeed on a Rule 12(f) motion to strike . . . it must be shown
that the allegations being challenged will be prejudicial to the moving party.")
(footnotes omitted).
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prejudice, allegations that are not strictly relevant to the alleged claims should not
be stricken if they provide important context and background to the claims
asserted or are relevant to some object of the pleader's lawsuit or response. Holt
v. Quality Egg, L.L.C., 777 F. Supp. 2d 1160, 1169 (N.D. Iowa 2011)(citing
Stanbury, 221 F.3d at 1063).
a. Defendant Lesan’s Answer
Plaintiff seeks to strike numerous portions of Defendant Lesan’s answer.
First, Plaintiff alleges paragraphs 5 & 6 of Lesan’s answer neither admit nor deny
any of Plaintiff’s allegations and are immaterial or impertinent. Plaintiff argues an
allegation is “immaterial” if it “has no essential or important relationship to the
claim for relief or the defenses being plead,” and paragraphs 5 & 6 of Lesan’s
answer do not meet this definition.

The court disagrees. Paragraphs 5 & 6 provide context and background
from Lesan’s point of view and have an important relationship to Plaintiff’s claim.
For example, Lesan’s allegation that Plaintiff was convicted for the offense of
Hinder, Delay, or Interrupt Arrest, as alleged in paragraph 6, provides relevant
information or context for reviewing the Lesan’s conduct. Plaintiff alleges a §
1983 claim for excessive force, and Plaintiff’s act of resisting arrest or impeding
the officer can be considered in deciding whether the officer’s conduct was
reasonable or, in the alternative, excessive. See Brown v. City of Golden Valley,
574 F.3d 491, 496–97 (8th Cir. 2009). In addition, Plaintiff had failed to show how
paragraphs 5 and 6 are unduly prejudicial.
Plaintiff next seeks to strike numerous paragraphs of Defendant Lesan’s
answer as alleging insufficient or improper defenses. Even if some of the

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paragraphs Plaintiff seeks to strike are not defenses to a 42 U.S.C. § 1983
action, the allegations are not redundant, impertinent, immaterial, or scandalous,
nor does Plaintiff show that these paragraphs cause him undue prejudice. (See
Filing No. 29 at CM/ECF pp. 4–7). And to the extent Lesan’s raises proper
defenses, she is not required to plead those defenses with specificity. See
Infogroup, Inc. v. Database, LLC, 95 F. Supp. 3d 1170 (D. Neb. 2015) (Gerrard,
J.) (Twombly/Iqbal standard does not apply to pleading affirmative defenses).
Strauss v. Centennial Precious Metals, Inc., 291 F.R.D. 338, 341 (D. Neb. 2013)
(“While [an affirmative] defense must be asserted in a responsive pleading, it
need not be articulated with any rigorous degree of specificity, and is sufficiently
raised for purposes of Rule 8 by its bare assertion”).
Plaintiff’s motion to strike portions of Defendant Lesan’s answer will be
denied in its entirety.
b. Defendant Hein’s Answer
Plaintiff alleges numerous paragraphs in Defendant Hein’s amended
answer are immaterial or impertinent. Defendant Hein counters that all of the
statements respond to Plaintiff’s allegations within his complaint.

Most of the challenged paragraphs provide context and background
information from Hein’s viewpoint. For that reason, they are neither immaterial
nor impertinent, and the information is not unduly prejudicial to Plaintiff.
Plaintiff also asserts that portions of paragraphs 5 & 6 of Defendant Hein’s
amended answer should be stricken as scandalous. The allegations at issue
within paragraphs 5 & 6 describe actions taken by Plaintiff or his mother that

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allegedly impeded or hindered Officer Hein’s ability to cite or arrest the Plaintiff.
(See Filing No. 22 ¶¶ 5 & 6 at CM/ECF pp. 1–3). These facts are not scandalous
and as discussed above they are directly relevant to the reasonableness of
Hein’s actions.
c. Defendant Hein’s Counterclaim
Plaintiff seeks to strike the entirety of Defendant Hein’s Counterclaim,
arguing this court lacks jurisdiction to hear the claim and the claim is time-barred.
In the alternative, Plaintiff claims that if Hein’s counterclaim is permitted to stand,
certain statements within the counterclaim should be stricken as immaterial,
impertinent, or scandalous.
This court will not dismiss Defendant Hein’s entire Counterclaim on a 12(f)
motion to strike. Plaintiff’s jurisdiction and statute of limitations arguments should
be addressed, if appropriate, in a motion to dismiss under Rule 12(b)(6) or a
motion for summary judgment under Rule 56.
Regarding Plaintiff’s alternative arguments, the same reasoning as
described above applies. The sections which Plaintiff seeks to strike provide
Defendant Hein’s narrative of the facts: They are relevant to the claims in this
case, including Hein’s counterclaims, are not scandalous, and are not unduly
prejudicial to the plaintiff.
For the above stated reasons, Plaintiff’s motion to strike will be denied in
its entirety.

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II.

Defendant Lesan’s Motion to Strike

Defendant Lesan argues Plaintiff is not entitled to a jury trial in accordance
with Neb. Rev. Stat. § 13-907 of the Nebraska Political Subdivisions Tort Claims
Act (“PSTCA”). Plaintiff argues that under the Seventh Amendment, he is entitled
to a jury trial because he is alleging a claim under 42 U.S.C. § 1983.

42 U.S.C. § 1983 does not expressly provide for the right to a jury trial. City
of Monterey v. Del Monte Dunes, 526 U.S. 687, 707–08 (1999). Therefore any
right to a jury trial on Plaintiff’s claims must be based on a Seventh Amendment
analysis.

The Seventh Amendment did not create a right to jury trial, but instead
preserved that right in the federal courts as it existed at common law in 1791.
Baltimore v. Carolina Line Inc. v. Redman, 295 U.S. 654, 657 (1935). Where a
federal statute does not specifically incorporate a right to a jury trial, the court
“fit[s] it into the nearest historical analogy to determine whether there is a right to
a jury trial.” Buss v. Douglas, 59 F.R.D. 334, 334–35 (D. Neb. 1973). “Under the
historical analogy analysis, if a claim presents what would have been at common
law an ‘equitable’ claim, there is no right to a jury trial, and, if the claim would
have been ‘legal’ in nature at common law, it may be triable to a jury today.” Id.

When the Seventh Amendment was adopted, there was no action
equivalent to 42 U.S.C. § 1983. However, it is now well settled that the Seventh
Amendment right to a jury trial “extends to statutory claims unknown to the
common law, so long as the claims can be said to ‘sound basically in tort,’ and
seek legal relief.” Monterey, 526 U.S. at 709 (quoting Curtis v. Loether, 415 U.S.
189, 195–96 (1974)). There is no doubt that § 1983 claims seeking damages for

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unlawful detention and the use of excessive force during an arrest sound in tort.
Monterey, 526 U.S. at 709.
However, “at common law no action for damages . . . lay against public
officials acting in their official capacities as agents of the sovereign.” Buss, 59
F.R.D. 336. “[I]f the action is a common law suit or the particular issues arise in a
common law suit, but no right of jury trial existed under the common law of
England as to that type of action, then there is no right to jury trial by virtue of the
Seventh Amendment.” Westcott v. Omaha, CV88-0-28, 1988 WL 383125 (April
11, 1988).

A sovereign may consent to a lawsuit against it or its agents on its own
terms, (United States v. Sherwood, 312 U.S. 584, 586 (1941)), and Nebraska
has done so. Nebraska waived its sovereign immunity on a limited basis by
adopting the Political Subdivisions Tort Claims Act, (“PTSCA”.) See Neb. Rev.
Stat. § 13-902. But under the PSTCA, Nebraska does not consent to trial by jury,
stating:
Jurisdiction, venue, procedure, and rights of appeal in all suits
brought under the Political Subdivisions Tort Claims Act . . . shall be
determined in the same manner as if the suits involved private
individuals, except that such suits shall be heard and determined by
the appropriate court without a jury.
Neb. Rev. Stat. § 13-907 (emphasis added).
Nebraska’s PSTCA, and its jury trial prohibition, applies to “any claim
against a political subdivision for money only on account of damage to or loss of
property or on account of personal injury or death, caused by the negligent or
wrongful act or omission of any employee of the political subdivision, “while
acting within the scope of his or her office or employment,” under circumstances
in which the political subdivision, if a private person, would be liable to the
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claimant for such damage, loss, injury, or death. Neb. Rev. Stat. § 13-903(4) The
PSTCA applies even when an official is sued in his or her individual capacity, as
long as the official was performing within the scope of employment. Parsons v.
McCann, 138 F. Supp. 3d 1086, 1112 (D. Neb. 2015) (J. Kopf); Stagemeyer v.
County of Dawson, 205 F. Supp. 2d 1107, 1118 (D. Neb. 2002); Cole v. Clark,
No. A-01-799, 2003 WL 21278477 (Neb. Ct. App. June 3, 2003); Cole v. Wilson,
627 N.W.2d 140 (Neb. Ct. App. 2001); but see D.M. v. State, 23 Neb. App. 17,
32 (Neb. Ct. App. 2015) (“[S]overeign immunity does not apply when state
officials are sued in their individual capacities—that is, when a suit seeks to hold
state officials personally liable. This is true even when state officials are sued in
their individual capacities for acts taken within the scope of their duties and
authority as state officials.”)(internal citations omitted).

As a deputy sheriff for Lancaster County, Nebraska, Lesan works for a
Nebraska political subdivision. Therefore, if Plaintiff is alleging a claim governed
by Neb. Rev. Stat. § 13-903(4), Plaintiff is not entitled to a jury trial. Based on the
allegations of Plaintiff’s complaint, Plaintiff brought his § 1983 claims against
Lesan in her individual capacity, asserting Lesan was at all relevant times, a duly
appointed and acting officer, servant, and employee of the County, and she
acted “under the color and authority of the laws, statutes, ordinances,
regulations, customs and/or usages of the State of Nebraska.” (Filing No. 1 ¶¶ 2,
3 at CM/ECF p. 1). So the question before the court is whether Plaintiff’s
complaint alleges Lesan’s actions at issue occurred not only “under color of law,”
but also within the scope of her employment for the County such that the jury
prohibition of Neb. Rev. Stat § 13-907 applies to those claims.
“The traditional definition of acting under color of state law requires that
the defendant in a § 1983 action have exercised power ‘possessed by virtue of

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state law and made possible only because the wrongdoer is clothed with the
authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988). Federal courts
have provided a broad construction to this term. Acts made under color of law
are made under pretense of law. They are performed under color of law if the
officers undertook to perform their official duties, irrespective of “whether they
hew to the line of their authority or overstep it.” Dossett v. First State Bank, 399
F.3d 940, 949 (8th Cir. 2005) (citing Screws v. United States, 325 U.S. 91, 111
(1945)) (emphasis in original). “Misuse of power, possessed by virtue of state law
and made possible only because the wrongdoer is clothed with the authority of
state law, is action taken ‘under color of’ state law.” Monroe v. Pape, 365 U.S.
167, 184 (1961)(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Generally, lawsuits against a defendant in his individual capacity involves
conduct outside the scope of his employment. Nix v. Norman, 879 F.2d 429, 431
(8th Cir. 1989). And determining whether a person was acting under the “scope
of employment” requires a factual inquiry. Johnson v. United States, 534 F.3d
958 (8th Cir. 2008).

Lesan argues that an examination of the facts leads to the conclusion that
she was acting within the scope of her employment as a Lancaster County
Deputy Sheriff and thus the PSTCA applies and prohibits a jury trial on Plaintiff’s
claims against her. But Plaintiff’s complaint does not explicitly allege Lesan was
acting within the scope of her employment. (See Filing No. 1). Instead, Plaintiff
alleges Lesan was acting under color of law, and an action need not be within the
scope of employment to be under color of law.2 There are no allegations within
Plaintiff’s complaint stating, or from which it must be inferred, that Lesan’s
alleged misconduct was performed within the permissible scope of her

2

See Cameron v. Milwaukee, 307 N.W.2d 164 (Wis. 1981) (analyzing the
differences between “color of law” and “scope of employment.”)
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employment. Since information beyond the pleadings is required to decide the
scope of employment issue, the court cannot at this time determine that Plaintiff’s
claim is subject to the PSTCA and its jury prohibition.

Based on the record currently before the court, Plaintiff is entitled to a jury
trial on his claims for damages under § 1983 against Lesan in her individual
capacity This determination is without prejudice to reconsideration if facts are
presented showing Lesan was acting within the scope of her employment when
the alleged acts occurred. See Monterey, 526 U.S. at 709.

Accordingly,
IT IS ORDERED:
1)

Plaintiff Oglesby’s Motion to Strike, (Filing No 28), is denied in its
entirety.

2)

Defendant Lesan’s motion to strike Plaintiff’s jury demand, (Filing
No. 30), is denied.

Dated this 30th day of May, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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