Oglesby v. Lesan et al

Filing 56

MEMORANDUM AND ORDER - Plaintiff's Statement of Objections (Filing No. 43 ) is denied. The Magistrate Judge's Order entered on May 30, 2017 (Filing No. 41 ), is sustained and shall not be disturbed. Ordered by Senior Judge Richard G. Kopf. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT OGLESBY,
Plaintiff,
v.
AMY LESAN and CHAD HEIN,
Defendants.

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4:16CV3189
MEMORANDUM
AND ORDER

Plaintiff has filed a Statement of Objections (Filing No. 43) to portions of a
Memorandum and Order entered by Magistrate Judge Cheryl R. Zwart on May 30, 2017
(Filing No. 41). After careful review conducted pursuant to 28 U.S.C. § 636(b)(1)(A),
Fed. R. Civ. P. 72(a), and NECivR 72.2, I find that the challenged parts of the order are
not clearly erroneous or contrary to law. Specifically, it was not clearly erroneous for
the Magistrate Judge to (1) decline to dismiss defendant Chad Hein’s state-law tort
counterclaims on a Fed. R. Civ. P. 12(f) motion to strike; and (2) deny defendant Amy
Lesan’s motion to strike Plaintiff’s jury demand without—instead of with—prejudice.
COUNTERCLAIMS
In the face of Plaintiff’s jurisdictional and statute-of-limitations challenges to
defendant Hein’s state-law tort counterclaims (Filing No. 22 at CM/ECF p. 7) against
Plaintiff, Magistrate Judge Zwart declined to “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.” (Filing No. 41 at
CM/ECF p. 6.)
Federal Rule of Civil Procedure 12(f) allows the court to “strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

Striking a pleading is an “extreme measure” that is “viewed with disfavor and
infrequently granted.” Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000)
(citing Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)).
Plaintiff’s request under Rule 12(f) that this court decline to exercise its
supplemental jurisdiction over the defendant’s state counterclaims does not fall within
the scope of Rule 12(f)—that is, Plaintiff does not argue that the counterclaims
constitute “an insufficient defense” or material that is “redundant, immaterial,
impertinent, or scandalous.” Fed. R. Civ. P. 12(f).
Further, Plaintiff’s Objection to the Magistrate Judge’s Order does not mention
how this court’s refusal to decide on a Fed. R. Civ. P. 12(f) motion to strike whether it
will eventually exercise supplemental jurisdiction over state counterclaims will
prejudice him. Vernor’s Ginger Ale Bottling Corp. v. Hires-Ideal Bottling Co., 8 F.R.D.
240, 242 (D. Neb. 1948) (“[A]lthough a pleading be redundant, immaterial, impertinent,
and literally susceptible to a motion to strike under the provisions of Rule 12(f), such
motion will not be granted in the absence of some showing of prejudicial harm resulting
to the adversary.”); Joe Hand Promotions, Inc. v. Ridgway, No. 6:14-CV-03401, 2015
WL 1321477, at *1 (W.D. Mo. Mar. 24, 2015) (“Even when striking a defense is
technically proper, courts are reluctant to do so in the absence of prejudice to the
moving party.”); see also Illinois Tool Works Inc v. ESAB Group, Inc., 2016 WL
8224331, *1-*2 (E.D. Wis. 2016) (“[T]his court does not propose to entertain disfavored
motions to strike merely to embark on the largely academic exercise of editing a
defendants’ [sic] pleadings. Instead, a party moving to strike must identify some actual
prejudice it could expect to sustain as a result of the offending pleading. That has not
been established here.”).
Therefore, it was not clearly erroneous for the Magistrate Judge to decline to
dismiss defendant Hein’s state-law tort counterclaims on a Fed. R. Civ. P. 12(f) motion
to strike.

2

JURY DEMAND
Plaintiff objects to the portion of Magistrate Judge Zwart’s Order denying
defendant Lesan’s motion to strike Plaintiff’s jury demand on his § 1983 claims
“without prejudice to reconsideration if facts are presented showing Lesan was acting
within the scope of her employment [under the Nebraska Political Subdivisions Tort
Claims Act] when the alleged acts occurred.” (Filing No. 41 at CM/ECF p. 11.)
Plaintiff complains that in this § 1983 action, the Nebraska Political Subdivisions Tort
Claims Act (“PSTCA”)—which in the state courts would not entitle Plaintiff to a
jury—is not at issue because Plaintiff has not asserted any state-court tort claims.
Therefore, Plaintiff argues, defendant Lesan’s motion to strike the jury demand should
have been denied with, rather than without, prejudice.
While I agree with Plaintiff that he has a Seventh Amendment right to a jury trial
in a § 1983 case regardless of whether the defendants were acting within or without the
scope of their employment (assuming they were acting under color of state law, which
is a different principle1), Judge Zwart’s alleged error, if it was error, is harmless.2
1

See Dossett v. First State Bank, 399 F.3d 940, 949 (8th Cir. 2005) (“under color
of law” for purposes of §1983 liability means under pretense of law, and acts of officer
who undertakes to perform official duties is included, whether or not the official’s
action was officially authorized or lawful); City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687 (1999) (action under § 1983 is action at law within
meaning of Seventh Amendment right to jury trial). My opinions in Parsons v. McCann,
138 F. Supp. 3d 1086, 1112 (D. Neb. 2015) (discussing applicability of PSTCA in
context of state-law tort claims) and Stagemeyer v. County of Dawson, 205 F. Supp. 2d
1107, 1118 (D. Neb. 2002) (discussing applicability of PSTCA in context of state-law
tort claims) are not to the contrary. Plaintiff does not assert state-law tort claims here.
2

See DeVries v. Driesen, 766 F.3d 922, 924 (8th Cir. 2014) (“It does not matter
whether a § 1983 suit could qualify as a claim under the [Iowa Tort Claims Act]; § 1983
creates a ‘uniquely federal remedy,’ and one ‘supplementary to any remedy any state
might have.’”) (quoting Mitchum v. Foster, 407 U.S. 225, 239 (1972), and McNeese v.
Bd. of Ed., 373 U.S. 668, 672 (1963)); Turner v. Palmer, 84 F. Supp. 3d 880, 885 (S.D.
Iowa 2015) (tolling provision under state tort claims act did not apply to § 1983 claims).
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Accordingly,
IT IS ORDERED:
1.

Plaintiff’s Statement of Objections (Filing No. 43) is denied; and

2.

The Magistrate Judge’s Order entered on May 30, 2017 (Filing No. 41),
is sustained and shall not be disturbed.

DATED this 6th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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