Schroer v. Baldwin Filters, Inc.

Filing 28

ORDER - The defendant's Motion to Dismiss, or, in the Alternative, to Strike and for a More Definite Statement (Filing No. 7 ) is denied in part and granted in part. The defendants motion for a more definite statement is granted to the extent the plaintiff shall have until August 12, 2013, to file an amended complaint. The motion is denied in all other respects. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LOHN SCHROER,
Plaintiff,

8:13CV101

vs.
ORDER
BALDWIN FILTERS, INC.,
Defendant.
This matter is before the court on the defendant’s Motion to Dismiss, or, in the
Alternative, to Strike and for a More Definite Statement (Filing No. 7).1 The defendant
filed a brief (Filing No. 8) in support of the motion. The plaintiff filed a brief (Filing No.
21) in opposition. The defendant filed a brief (Filing No. 24) in reply.

BACKGROUND
This matter arises from the alleged wrongful termination of the plaintiff, Lohn
Schroer, by the defendant, Baldwin Filters, Inc.

The plaintiff’s complaint sets forth

multiple factual allegations, which the court relies on for the purposes of the defendant’s
motion. The plaintiff alleges the following facts:
The defendant hired the plaintiff on December 4, 2000, to
work full-time at the defendant’s manufacturing plant in
Kearney, Nebraska. See Filing No. 1-1 – Ex. 1 Complaint ¶
3. The defendant employed the plaintiff under certain terms
and conditions for approximately ten years until December
2011, when the defendant terminated the plaintiff’s
employment. Id. ¶¶ 3-4. Those terms and conditions
restricted the defendant’s ability to terminate the plaintiff. Id.
¶ 3. While working for the defendant in 2004, the plaintiff
sustained an injury and, as a result, became forty-percent
disabled but was able to work with restrictions. Id. ¶ 5. The
defendant continued to employ the plaintiff “with the
knowledge of the restrictions.” Id. The defendant also
employed Corrie Crowin (Crowin) as the plaintiff’s
supervisor. Id. ¶ 6. Crowin “harassed Plaintiff during
working hours and discriminated against Plaintiff due to his
disability.” Id. ¶ 7. “Corrie Crowin was acting within the
course and scope of employment with the Defendant. Corrie
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The parties consented to jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). See Filing No. 26.

Crowin was acting on the Defendant’s behalf when the
incident took place.” Id. ¶ 8. The “incident” is not described
in the complaint.
Based on these alleged facts the plaintiff filed a complaint on February 22, 2013,
in the District Court of Buffalo County, Kearney, Nebraska. See Filing No. 1-1 – Ex. 1
Complaint. The plaintiff lists four claims for relief. The plaintiff alleges the defendant
“failed to fulfill the terms of its employment contract with plaintiff,” thereby breaching the
contract (Claim 1). Id. ¶ 11. The plaintiff alleges the defendant “owed Plaintiff a duty of
good faith and fair dealing in its termination and harassment of Plaintiff,” and
“Defendant’s harassment of Plaintiff due to his disability violates good faith and fair
dealing as well as public policy” (Claim 2). Id. ¶¶ 14-16. The plaintiff alleges the
“Defendant failed to take reasonable care in hiring its workers . . . or in keeping them on
after learning the worker poses a potential danger” and accordingly “Defendant acted
carelessly in that it knew or should have known that its employee, Corrie Crowin, was
unfit for the job, yet the Defendant did nothing about it,” as the basis for a claim for
careless hiring and retention (Claim 3). Id. ¶¶ 20-21. Finally, the plaintiff alleges he
was wrongfully terminated (Claim 4) because he “was fired or laid off as an employee in
violation of a written employment agreement,” as well as “denied promotions and
training by the Defendant in violation of his employment agreement.” Id. ¶ 24. The
plaintiff seeks $540,000.00 in lost wages in addition to lost benefits and emotional
distress and other damages to be determined at trial. See id. at ¶ 9.
On March 27, 2013, the defendant removed the case to the United States District
Court for the District of Nebraska.

See Filing No. 1 – Notice of Removal.

The

defendant removed the case based on diversity of citizenship, pursuant to 28 U.S.C.A.
§ 1332. Id. ¶ 6. On April 19, 2013, the defendant filed the instant motion. See Filing
No. 7.

The defendant argues Claim 1 fails to state a claim because generally in

Nebraska employment is without a contract and considered to be at-will such that the
employer can terminate the employee at any time for any reason. See Filing No. 8 –
Brief p. 5. The defendant argues the plaintiff failed to allege sufficient facts to show
there was a contract. Id. at 6. Further, the defendant argues Claim 2 is insufficient
without proof of the contract because in Nebraska an employer only owes a duty of
good faith and fair dealing if there is an employment contract. Id. The defendant also
argues the plaintiff failed to state facts that would support Claim 3 to prove Crowin unfit.
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Id. at 8. The defendant argues the plaintiff did not state a particular public policy that
was violated to make his termination wrongful. Id. at 9. Furthermore, the defendant
argues all of the plaintiff’s claims are essentially disability discrimination claims and
therefore fall under the Nebraska Fair Employment Practices Act (NFEPA) that has a
statute of limitations of 300 days, which began to run when the plaintiff’s employment
ended in December 2011. Id. at 9-12. The plaintiff denies his claims must fall under
NFEPA and argues instead his claims arise under tort and contract law. See Filing No.
21 – Response p. 4-5.
Alternatively, if the defendant’s motion to dismiss is denied, the defendant moves
to strike, in part, and for a more definite statement.

The defendant contends

paragraphs V, VII, and XVI contain irrelevant and scandalous materials and should be
stricken. See Filing No. 8 – Brief p. 12. The defendant moves for a more definite
statement on grounds the complaint lacks factual specificity in several respects. Id.
The defendant argues, at a minimum, the plaintiff must include “the facts establishing an
employment contract between Plaintiff and Defendant; the public policy allegedly
violated by Defendant; [and] the source of the duty of good faith and fair dealing” if the
defendant is to effectively prepare a response. Id.

ANALYSIS
A.

Motion to Strike
The Federal Rules of Civil Procedure provide a mechanism for the court to “strike

from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” See
Fed. R. Civ. P. 12(f). A party may move the court to strike an opposing party’s pleading
or a portion of the pleading “before responding to the pleading.” Id. “The function of a
12(f) motion to strike is to avoid the expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues prior to trial.” Whittlestone,
Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). A court possesses liberal
discretion when ruling on motions to strike under Rule 12(f). See Moore v. City of
Desloge, Mo., 647 F.3d 841, 849 (8th Cir. 2011). “Because such relief is an extreme
measure, however, motions under Rule 12(f) are viewed with disfavor in the Eighth
Circuit and are infrequently granted.” E.E.O.C. v. Product Fabricators, Inc., 873 F.
Supp. 2d 1093, 1097 (D. Minn. 2012)

(internal quotations omitted).
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Courts are

concerned the motion may only serve to delay proceedings. See Stanbury Law Firm
v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000).
Accordingly, a motion to strike is denied if the content sought to be stricken “is
sufficient as a matter of law or if it fairly presents a question of law or fact which the
court ought to hear.” Lunford v. United States, 570 F.2d 221, 229 (8th Cir. 1977).
“Even matters that are not strictly relevant to the principal claim at issue should not
necessarily be stricken, if they provide important context and background to claims
asserted or are relevant to some object of the pleader’s suit.” Jones v. Dolgencorp,
Inc., 789 F. Supp. 2d 1090, 1096 (N.D. Iowa 2011) (internal quotations omitted). By
contrast, an averment with no basis in law may be stricken. See United States v. Dico,
Inc., 266 F.3d 864, 879-80 (8th Cir. 2001) (striking defenses when foreclosed by circuit
precedent); BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917-18 (8th Cir.
2007) (upholding decision to strike punitive damage prayer where claim forming basis
for prayer insufficiently plead under Fed. R. Civ. P. 9); Jameson v. State Farm Mut.
Auto. Ins. Co., 871 F. Supp. 2d 862, 874 (W.D. Mo. 2012) (striking when “no apparent
connection found” between allegation and claim).
Generally, motions to strike are granted only when the court is “convinced that
there are no questions of fact and that any questions of law are clear and not in dispute,
and that under no set of circumstances can the [claim] succeed.”

Williamson v.

Unifund CCR Partners, 2009 WL 187702, at *3 (D. Neb. 2009) (quoting Pucket v.
United States, 82 F. Supp. 2d 660, 662-63 (S.D. Tex. 1999)). Furthermore, allegations
will not be stricken as immaterial under this rule “unless it can be shown that no
evidence in support of the allegation would be admissible.” United States v. Shell Oil
Co., 605 F. Supp. 1064, 1085 (D. Colo 1985). “Impertinent allegations are those that
are not responsive or relevant to issues involved in the action and which could not be
admitted as evidence in the litigation.” Ingram v. Grant Joint Union High Sch. Dist.,
2010 WL 3245169, at *5 (E.D. Cal. 2010) (citing Fantasy, Inc. v. Fogerty, 984 F.2d
1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994)). Finally, a
party must usually make a showing of prejudice before a court will grant a motion to
strike. See Sobba v. Elmen, 462 F. Supp. 2d 944, 946 (E.D. Ark. 2006).
The defendant argues paragraphs V, VII, and XVI of the plaintiff’s complaint
should be stricken. See Filing No. 8 – Brief p. 12.
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Paragraph V asserts the defendant

knew of the plaintiff’s disability. See Filing No. 1-1 – Ex. 1 Complaint ¶ 5. Paragraph
VII asserts Crowin harassed the plaintiff because of his disability. Id. ¶ 7. Paragraph
XVI asserts the defendant harassed the plaintiff because of his disability in violation of
the duty of good faith and fair dealing. Id. ¶ 16. The defendant argues this material is
irrelevant and scandalous as to the claims as they are alleged, therefore it should be
stricken. See Filing No. 8 – Brief p. 12. Specifically, the defendant contends reference
to the plaintiff’s disability would be relevant to a disability discrimination claim, but such
references are not relevant to contract and tort claims, as plead. Id.
The disputed paragraphs contain information providing important background
and context to the plaintiff’s claims.

The plaintiff’s disability and the alleged

discrimination and harassment he experienced because of the disability are relevant to
the context and background of the negligent selection and retention claim, as is the
defendant’s knowledge of the disability. This information is also relevant to the context
and background to the plaintiff’s good faith and fair dealing claim. The defendant fails to
show the allegations are immaterial or irrelevant to the issues involved in the action.
The defendant further fails to show that no evidence in support of the allegation would
be admissible, or that it suffers undue prejudice as a result of the inclusion of these
paragraphs. The court finds the defendant fails to show paragraphs V, VII, and XVI
contain redundant, immaterial, impertinent, or scandalous matter.

Therefore, the

defendant’s motion to strike is denied.

B.

Motion to Dismiss, or, in the Alternative, for a More Definite Statement
The defendant argues the plaintiff fails to state a claim upon which relief can be

granted because the plaintiff’s complaint fails to state facts sufficient to show the plaintiff
is entitled to relief and instead states only conclusory allegations. See Filing No. 7 –
Motion p. 5. Specifically, the defendant contends the plaintiff’s complaint contains no
details concerning the employment contact, including who was involved and whether it
was oral or written. Id. at 5-6. Further, the defendant argues the plaintiff fails to set
forth specific or sufficient facts showing the existence of a claim for negligent hiring or
retention. Id. at 7. The defendant asserts the plaintiff’s claim for wrongful termination
similarly lacks sufficient factual allegations concerning which public policy the defendant
violated and which employee of the defendant violated it. Id. at 9. Lastly, the defendant
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argues the plaintiff’s claims are essentially disability discrimination claims under the
NFEPA, and therefore should be dismissed as barred by the 300 day statute of
limitations in Neb. Rev. Stat. § 48-1118. Id. at 11.
The plaintiff admits numerous times “[t]he complaint was prepared under the
pleading rules of Nebraska state law and not the pleading rules of the Federal Court.”
Filing No. 21 – Response p. 2. The plaintiff concedes the defendant’s motion for a more
definite statement should be granted. Id. The plaintiff’s allegations are not completely
without factual support but they may fail to cross “the line between possibility and
plausibility of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007). Assuming without deciding the complaint in its current form does not satisfy the
Twombly standards for federal proceedings, the defendant’s motion for a more definite
statement under Rule 12(e) is granted.

Dismissal without leave to amend, as the

defendant suggests, is not appropriate under the circumstances. Upon consideration,

IT IS ORDERED:
The defendant’s Motion to Dismiss, or, in the Alternative, to Strike and for a More
Definite Statement (Filing No. 7) is denied in part and granted in part. The defendant’s
motion for a more definite statement is granted to the extent the plaintiff shall have until
August 12, 2013, to file an amended complaint. The motion is denied in all other
respects.

Dated this 29th day of July, 2013.
BY THE COURT:

s/ Thomas D. Thalken
United States Magistrate Judge

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