Cox et al v. Office of the Federal Detention Trustee et al
Filing
110
ORDER Granting 100 Motion to Strike and STRIKING the new NEPA claim and the new prayer for relief, concerning the installation of sewage pipes, as well as any reference to either CCA or Utilities, Inc. as defendants in the Second Amended Complaint. Signed by Judge David A. Ezra on 7/19/11. (Copies have been distributed pursuant to the NEF - MMM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
CONCERNED CITIZENS FOR A
SAFE COMMUNITY; DONNA
COX; ANTHONY COX; DAVID
CARROLL; and NANCY LORD,
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
OFFICE OF FEDERAL
)
DETENTION TRUSTEE,
)
)
Defendant.
)
_____________________________ )
CV. NO. 09-01409 DAE
ORDER GRANTING OFDT’S MOTION TO STRIKE
Pursuant to Local Rule 78–2, the Court finds this matter suitable for
disposition without a hearing. After reviewing the motion and the supporting and
opposing memoranda, the Court GRANTS Defendant Office of Federal Detention
Trustee’s (“OFDT”) Motion to Strike. (Doc. # 100.)
BACKGROUND
This matter arises from a proposal to build a privately operated
detention center in Pahrump, Nevada to house federal prisoners. Plaintiffs Donna
Cox (“Cox”) and Concerned Citizens for a Safe Community (“Concerned
Citizens”) filed a Complaint on August 3, 2009, seeking to enjoin Defendant
Office of Federal Detention Trustee (“OFDT”) from building the detention center
and/or placing inmates in the facility.1 (Doc. # 1.) On March 20, 2010, with leave
of Court (Doc. # 57), Plaintiffs filed an Amended Complaint (“Am. Compl.,” Doc.
# 58).
The Amended Complaint presented two causes of action. Count I
alleged violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
seq. (Am. Compl. ¶¶ 61–83.) In particular, Cox and Concerned Citizens alleged
that the public was not adequately notified of the proposal to build the detention
center, that there would not be adequate water or sewage facilities for the project,
and that the Environmental Impact Statement (“EIS”) failed to adequately analyze
the impact of the development on various animal and plant species. (Id.) Count II
alleged that OFDT violated NEPA because the final EIS failed to adequately
analyze the impact that the excess sewage at Waste Water Treatment Plant 3 would
have on several animal species as well as humans who could potentially be
exposed to coliform bacteria. (Id. ¶¶ 84–91.)
1
The Complaint also named PAVED, Inc. (“PAVED”) as a defendant in this
action. (Doc. # 1.) PAVED was dismissed with prejudice on November 9, 2009.
(Doc. # 20.)
2
In their Amended Complaint, Cox and Concerned Citizens sought a
declaratory judgment that the contract between OFDT and Corrections Corporation
of America (“CCA”) was “null and void ab initio” as well as a permanent
injunction to enjoin OFDT from making payments to CCA and from transferring
inmates to the facility. (Id. at 30–31.) Cox and Concerned Citizens also requested
a permanent injunction to enjoin OFDT from performing on the development
agreement signed by the Board of County Commissioners and to enjoin OFDT,
through “its agent” CCA, from sending sewage to Waste Water Treatment Plant 3.
(Id.)
On August 2, 2010, Cox and Concerned Citizens filed a Motion for
Summary Judgment. (Doc. # 88.) OFDT filed a Cross-Motion for Summary
Judgment on September 3, 2010. (Doc. # 91.) On November 30, 2010, the Court
dismissed without prejudice the Amended Complaint on the basis that neither Cox
nor Concerned Citizens had set forth sufficient facts and evidence to establish
standing to bring this action. (Doc. # 97.) The Court gave Cox and Concerned
Citizens sixty days leave to file a Second Amended Complaint curing these
pleading deficiencies. (Id.)
On January 31, 2011, Cox and Concerned Citizens filed a Second
Amended Complaint, adding as plaintiffs Anthony Cox, David Carroll, and Nancy
3
Lord (collectively, “Plaintiffs”).2 (Doc. # 99.) The Second Amended Complaint
also added as defendants CCA and Utilities, Inc., and it included a new NEPA
allegation as well as a new prayer for relief. The new NEPA allegation asserts that
the final EIS did not consider the consequences of installing sewage pipes in the
ground (id. ¶ 106), and the new prayer for relief seeks removal of these sewage
pipes (id. at 32–33).
On February 14, 2011, OFDT filed a Motion to Strike pursuant to
Federal Rules of Civil Procedure (“Rule”) 12(f). (“Mot.,” Doc. # 100.) Plaintiffs
filed an Opposition on February 24, 2011. (“Opp’n,” Doc. # 102.) OFDT filed a
Reply on March 7, 2011. (“Reply,” Doc. # 104.)
DISCUSSION
Rule 12(f) authorizes the Court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.”3 Fed. R. Civ. P. 12(f). “‘The function of a 12(f) motion to strike is to
2
Plaintiff Lord is also the Plaintiffs’ attorney in this action.
3
Rule 12(f) provides, in its entirety, as follows:
(f)
Motion to Strike. The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter. The court may act:
(1)
on its own; or
4
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. HandiCraft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984
F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by Fogerty v. Fantasy,
Inc., 510 U.S. 517 (1994)).
Here, OFDT contends that Plaintiffs’ new NEPA allegation and new
prayer for relief, regarding the installation of sewage pipes, should be stricken
because they exceed the scope of the leave to amend granted by this Court. OFDT
also asserts that Plaintiffs improperly added new defendants in the Second
Amended Complaint.
The Court’s November 30, 2010 Order gave leave to amend for the
limited purpose of curing the standing deficiencies.4 (Doc. # 97.) Indeed, the
(2)
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.
Fed. R. Civ. P. 12(f).
4
The November 30, 2010 Order stated:
The Court recognizes that it may be possible for Plaintiffs to establish
standing if provided the opportunity to amend their Amended
Complaint. Accordingly, the Amended Complaint is DISMISSED
WITHOUT PREJUDICE, with leave to amend no later than 60 days
from the filing of this Order.
5
Court’s Order, which provided a detailed analysis of how to properly allege
standing and specifically outlined the deficiencies in the Amended Complaint as to
this issue, only addressed standing and expressly declined to evaluate the merits of
Plaintiffs’ substantive claims.
In contravention of this Court’s Order, Plaintiffs’ Second Amended
Complaint adds a new NEPA claim, a new prayer for relief, and two new
defendants. Plaintiffs implicitly concede that they exceeded the scope of the leave
granted by the Court because they argue, in opposition to the Motion to Strike, that
Rule 15(d) allows them to amend and supplement their pleadings. (Opp’n at 3–4.)
However, despite the requirements of Rule 15(d), Plaintiffs have neither requested
nor obtained leave from this Court to file an amended complaint in accordance
with this provision. Moreover, because the deadline to amend the pleadings or join
additional parties expired more than nine months before Plaintiffs filed the Second
Amended Complaint, they must satisfy the good cause standard set forth in Rule
16(b). See Fed. R. Civ. P. 16(b); Coleman v. Quaker Oats Co., 232 F.3d 1271,
1294–95 (9th Cir. 2000). Plaintiffs therefore cannot utilize Rule 15(d) as a post
hoc rationalization for their failure to comply with the Court’s directive.
(Doc. # 97 at 22.)
6
In sum, Plaintiffs improperly, and without leave of court, added new
substantive claims, allegations, and defendants in their Second Amended
Complaint. Accordingly, the Court GRANTS the Motion to Strike (Doc. # 100)
and STRIKES the new NEPA claim and the new prayer for relief, concerning the
installation of sewage pipes, as well as any reference to either CCA or Utilities,
Inc. as defendants in the Second Amended Complaint. See Siskiyou Reg’l Educ.
Project v. U.S. Forest Serv., 565 F.3d 545, 559–60 (9th Cir. 2009) (affirming a
district court’s decision to strike an intervenor’s answer when the answer
“exceeded the bounds” of the limited intervention granted).
CONCLUSION
For the reasons stated above, the Court GRANTS OFDT’s Motion to
Strike. (Doc. # 100.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 19, 2011.
_____________________________
David Alan Ezra
United States District Judge
Cox et al. v. Office of Federal Detention Trustee, Cv. No. 09-01409 DAE; ORDER
GRANTING OFDT’S MOTION TO STRIKE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?