Wellman v. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives

Filing 44

ORDER - Defendant's Motion to Strike (ECF No. 26 ) is granted. The Clerk is directed to strike the Second Amended Complaint (ECF No. 25 ). Plaintiff will have 15 days from issuance of this Order to file a third amended complaint to comply with this Order by removing paragraph 15 from the Second Amended Complaint. Signed by Judge Miranda M. Du on 5/18/2017. (Copies have been distributed pursuant to the NEF - DRM)

Download PDF
1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 MICAH K. WELLMAN, Case No. 3:14-cv-00348-MMD-WGC Plaintiff, 9 v. 10 11 DEPARTMENT OF JUSTICE, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, ORDER (Def.’s Motion to Strike Plf.’s Amended Complaint – ECF No. 26) 12 Defendant. 13 14 I. SUMMARY 15 Before the Court is Defendant Department of Justice, Bureau of Alcohol, 16 Tobacco, Firearms and Explosives’ Motion to Strike Plaintiff’s Amended Complaint 17 (“Motion”). (ECF No. 26.) The Court has reviewed the Motion, Plaintiff’s response (ECF 18 No. 28), and Defendant’s reply1 (ECF No. 35). For the reasons discussed below, 19 Defendant’s Motion is granted. 20 II. RELEVANT BACKGROUND 21 Pro se Plaintiff Micah K. Wellman brings this action under the Freedom of 22 Information Act (“FOIA”), 5 U.S.C. § 552, and the Administrative Procedures Act, 5 23 U.S.C. § 551 et seq., seeking the production of agency records and emails concerning 24 an Internal Affairs investigation that Defendant had conducted. Plaintiff initially filed his 25 complaint on July 3, 2014. (ECF No. 1.) Defendant filed its first motion to dismiss (ECF 26 No. 11) on September 15, 2014, which this Court granted in part and denied in part while 27 28 1The Court granted Defendant’s amended request for an extension of time to file its reply (ECF No. 30) and denied Defendant’s initial request (ECF No. 27) as moot. (ECF No. 32.) 1 giving Plaintiff an opportunity to amend the initial complaint (ECF No. 17). Plaintiff then 2 filed his First Amended Complaint (“FAC”) on August 26, 2015. (ECF No. 18.) Defendant 3 moved for a second time to dismiss Plaintiff’s FAC pursuant to Fed. R. Civ. P. 12(b)(6) 4 but only as to his Administrative Procedures Act (“APA”) claim.2 (ECF No. 20.) The Court 5 granted dismissal but gave leave for Plaintiff to amend his complaint to cure the 6 deficiencies with respect to his APA claim. (ECF No. 24.) Defendant now moves to strike Plaintiff’s Second Amended Complaint (“SAC”), 7 8 specifically the portion of the SAC that amends the FOIA claim. 9 III. DISCUSSION 10 The Court’s September 7, 2016, Order permitted Plaintiff to amend his complaint 11 to specify the factual allegations that warrant relief under the APA pursuant to 5 U.S.C. § 12 552 (a)(F)(i). (ECF No. 24 at 4-5.) Specifically, the Court gave Plaintiff leave to amend 13 the complaint to allege facts that would permit a finding that the “circumstances 14 surrounding the withholding [of documents] raise questions whether agency personnel 15 acted arbitrarily and capriciously.” (Id. at 4 (quoting 5 U.S.C. § 552 (a)(F)(i)).) In the SAC, 16 Plaintiff added this language (ECF No. 25 at 5) but also added an additional paragraph 17 stating: 18 19 20 21 The defendants recent release on October 19, 2016, withheld 28 pages in full siting [sic] FOIA exemptions (B)(5) and (B)(7)(c). Plaintiff challenges the broad use of these exceptions to withhold entire pages. This broad use of these exemptions to withhold entire documents is tantamount to withholding documents under FOIA. (Id. at ¶15.) 22 Defendant argues that Plaintiff’s unauthorized amendment of his FOIA claim 23 makes the SAC a “rogue document that should be stricken.” (ECF No. 26 at 3.) Under 24 Fed. R. Civ. P. 12(f), a Acourt may strike from a pleading . . . any redundant, immaterial, 25 impertinent, or scandalous matter.@ Matter is Aimmaterial@ if it has no bearing on the 26 controversy before the court. In re 2TheMart.com, Inc Sec. Litig., 114 F. Supp. 2d 955, 27 28 2Defendant filed an Answer to respond to Plaintiff’s Freedom of Information Act (“FOIA”) claim. (ECF No. 19.) 2 1 965 (C.D. Cal. 2000). Allegations are Aimpertinent@ if they are not responsive to the 2 issues that arise in the action and that are admissible as evidence. Id. The Court agrees 3 with Defendant that the allegations relating to Plaintiff’s FOIA request is immaterial to the 4 APA claim that the Court granted Plaintiff leave to amend. Plaintiff’s unauthorized 5 amendment of his FOIA claim amounts to an impertinent addition to the SAC, as the 6 Court did not permit such amendment. 7 IV. CONCLUSION 8 It is hereby ordered that Defendant’s Motion to Strike (ECF No. 26) is granted. 9 The Clerk is directed to strike the Second Amended Complaint (ECF No. 25). Plaintiff will 10 have fifteen (15) days from issuance of this Order to file a third amended complaint to 11 comply with this Order by removing paragraph 15 from the SAC. Failure to timely file an 12 amended complaint will result in dismissal of the APA claim with prejudice. 13 DATED THIS 18th day of May 2017. 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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?