D'AMBLY v. EXOO et al

Filing 135

OPINION AND ORDER denying 112 Motion for Sanctions; denying 115 Motion to Strike. Signed by Judge John Michael Vazquez on 8/1/2022. (mxw)

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Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANIEL D’AMBLY, et al.,
Plaintiffs,

Civil Action No. 20-12880

v.

OPINION & ORDER

CHRISTIAN EXOO a/k/a ANTIFASH
GORDON, et al.,
Defendants.

John Michael Vazquez, U.S.D.J.
In this case, Plaintiffs, purported far right activists and their family members, take aim at
Defendant Christian Exoo, a purported far left activist, and others for their alleged doxing
campaigns because of Plaintiffs’ political views. The overarching issue is whether the doxing
crossed a line into unlawful action. Presently before the Court are Defendant Christian Exoo’s
motions to strike certain allegations and Defendants from the Second Amended Complaint
(“SAC”), D.E. 115, and for sanctions because Plaintiffs included the allegations and parties at
issue in the SAC, D.E. 112. Plaintiffs filed a brief in opposition to the motions, D.E. 125, to which
Exoo replied, D.E. 129, 130.1 The Court reviewed the parties’ submissions and decided the

1

The Court refers to Exoo’s brief in support of his motion to strike (D.E. 115-1) as “Strike Br.”;
his brief in support of his motion for sanctions (D.E. 112-1) as “Sanctions Br.”; Plaintiffs’ brief in
opposition (D.E. 125) as “Plfs. Opp.”; Exoo’s reply brief in further support of his motion for
sanctions (D.E. 129) as “Sanctions Reply”; and his reply brief in further support of the motion to
strike (D.E. 130) as “Strike Reply”.

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motions without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the
reasons set forth below, Exoo’s motions are DENIED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
For purposes of the instant motions, the Court does not retrace this case’s full factual and

procedural history. This Court’s November 1, 2021 opinions granting Defendant Cohen, Weiss,
and Simon, LLP’s Rule 12(c) motion to dismiss2, D.E. 97, and the remaining Defendants’ Rule
12(b)(2) and (6) motions to dismiss (the “Nov. 1 Opinion”), D.E. 99, include a detailed recounting
of the factual background of this matter. To the extent relevant to the instant motions, the Court
incorporates the factual and procedural history from these prior opinions.
Plaintiff Daniel D’Ambly’s initial Complaint largely addressed Exoo’s alleged doxing
campaign against D’Ambly.

D’Ambly alleged that Exoo identified D’Ambly as a white

supremacist then instructed his associates to ascertain D’Ambly’s true identity and dox, or publicly
disclose D’Ambly’s personal, identifying information. Compl. ¶ 1. D’Ambly alleges that he was
terminated from his job at the New York Daily News because of the doxing campaign. Id. On
March 25, 2021, Plaintiffs filed the First Amended Complaint (“FAC”), which included allegations
about doxing campaigns that Defendants waged against D’Ambly and additional Plaintiffs.
Certain Defendants subsequently filed motions to dismiss the FAC pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(6). D.E. 74, 75, 78, 79. This Court granted
Defendants’ motions on November 1, 2021, and dismissed certain of Plaintiffs’ claims pursuant to
Rule 12(b)(6), including Plaintiffs’ RICO claims and several claims alleging violations of criminal
statutes. D.E. 97-100. The Court also determined that every Plaintiff except D’Ambly failed to

2

Plaintiff Daniel D’Ambly’s claim against Cohen, Weiss, and Simon, LLP has since been
dismissed with prejudice. D.E. 133, 134. Consequently, Cohen, Weiss, and Simon, LLP is no
longer a Defendant in this matter.
2

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establish personal jurisdiction to assert their claims against Exoo.

Accordingly, the Court

dismissed these claims pursuant to Rule 12(b)(2). D.E. 100. The Court provided Plaintiffs with
leave “to file an amended pleading that remedies the identified deficiencies.” Id.
Plaintiffs filed the SAC on November 20, 2021. D.E. 103. Among other things, the SAC
asserts claims against two additional Defendants, Nick Strickland and Torch Antifa Network
(“Torch”), and a new claim alleging a violation of Section 610 of the Labor-Management Relations
Disclosure Act (“LMRDA”), 29 U.S.C. § 530. SAC ¶¶ 24-25, 204-211. Through the present
motions, Exoo seeks to strike the new claim, Count VII, and Defendants pursuant to Federal Rule
of Civil Procedure 12(f) because these allegations and parties purportedly exceed the scope of this
Court’s Order granting Plaintiffs leave to amend. D.E. 115. Exoo also seeks sanctions, including
attorney’s fees relating to the motion to strike. D.E. 112.
II.

MOTION TO STRIKE
Rule 12(f) of the Federal Rules of Civil Procedure states that a “court may strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). Thus, Rule 12(f) sets forth two standards for striking matter from a pleading:
(1) “an insufficient defense,” or (2) “any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). “As a general matter, motions to strike under Rule 12(f) are highly
disfavored.” Thompson v. Real Est. Mortg. Network, Inc., No. 11-1494, 2018 WL 4604310, at *2
(D.N.J. Sept. 24, 2018) (citing F.T.C v. Hope Now Modifications, No. 09-1204, 2011 WL 883202,
at *1 (D.N.J. Mar. 10, 2011)). Moreover, the decision to strike material from a pleading is
discretionary. Hope Now Modifications, LLC, 2011 WL 883202, at *1.
The second category is at issue here. “[W]here the challenged material is redundant,
immaterial, impertinent, or scandalous, a motion to strike should not be granted unless the presence

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of the surplusage will prejudice the adverse party.” Id. But motions to strike “will generally ‘be
denied unless the allegations have no possible relation to the controversy and may cause prejudice
to one of the parties, or if the allegations confuse the issues.’” Garlanger v. Verbeke, 223 F. Supp.
2d 596, 609 (D.N.J. 2002) (quoting Tonka Corp. v. Rose Art Indus., Inc., 836 F. Supp. 200, 217
(D.N.J. 1993)).
Courts have stricken allegations from a complaint, pursuant to Rule 12(f), that exceed the
scope of a party’s leave to amend. See U.F.C.W. Loc. 56 Health & Welfare Fund v. J.D.’s Market,
240 F.R.D. 149 154-55 (D.N.J. 2007) (“Because Counts Three through Six of Plaintiffs’ SAC
exceeded the scope of the leave Plaintiffs were given, the Court must strike these claims.”); see
also Tenny J. Commc’ns, Inc. v. Verizon N.J., Inc., No. 19-19183, 2022 WL 1912390, at *2 (D.N.J.
June 2, 2022) (“If the amended complaint exceeds the scope of an allowed amendment, the
appropriate remedy is to strike the unauthorized amendments under Federal Rule of Civil
Procedure 12(f).”) (internal quotation omitted). Exoo contends that the Court “did not authorize
Plaintiffs to add new claims, new parties or new legal theories” and the SAC “flagrantly exceed[s]
the scope of leave granted by the Court.” Strike Br. at 4-5. Plaintiffs counter that the amendments
at issue were intended to cure the Court’s concerns about personal jurisdiction and their RICO
claims.
With respect to the two new Defendants, Plaintiffs explain that Strickland is a New Jersey
resident and Exoo’s associate. Plfs. Opp. at 2. The SAC pleads that when Exoo directed his
associates to place threatening phone calls, emails, Twitter messages and social media comments
to D’Ambly’s employer, Strickland responded. SAC ¶¶ 55, 57, 61-63. Plaintiffs also plead that
Torch is a “network of militant antifascists” and its founding member, Daryle Lamont Jenkins, is
a New Jersey resident. Id. ¶ 25; Plf. Opp. at 3-4. Plaintiffs continue that Jenkins responded to

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Exoo’s instructions to contact D’Ambly’s employer. SAC ¶ 64. In addition, Torch members
allegedly damaged Plaintiff Rehl’s home due to Exoo’s Tweets, id. ¶¶ 82-83, and conspired with
Exoo to dox other Plaintiffs, see, e.g., id. ¶¶ 98, 110-11.
In dismissing the claims asserted by all Plaintiffs except D’Ambly, the Court explained
that these Plaintiffs failed to demonstrate a connection between their claims, New Jersey, and
Exoo. As a result, the Court dismissed these claims for lack of personal jurisdiction. Nov. 1
Opinion at 13-14. As discussed, Plaintiffs maintain that their allegations about Torch and
Strickland are an attempt to tie all Plaintiffs and their claims to this forum. The Court, therefore,
will not conclude that Plaintiffs exceeded the scope of the Order through their efforts to fix the
identified deficiencies related to personal jurisdiction.
This is also the case for Count VII, Plaintiffs’ new claim alleging a violation of Section
610 of the LMRDA. Plaintiffs argue that they included this claim in the SAC to establish a RICO
predicate act. Plfs. Opp. at 20-22. In dismissing Plaintiffs’ substantive federal RICO claim, the
Court explained that “[w]ithout sufficient predicate acts, Plaintiffs cannot plausibly allege that
there was a pattern of racketeering activity. Plaintiffs’ substantive RICO claim therefore fails.”
Nov. 1 Opinion at 8. And without a substantive RICO claim, Plaintiffs could not allege a RICO
conspiracy. Id. Thus, Count VII is an attempt to fix Plaintiffs’ RICO claims.
Because Plaintiffs asserted claims against two new Defendants and included Count VII in
the SAC as an attempt to remedy their deficient claims, the Court will not strike these allegations
from the SAC.3 Exoo’s motion to strike is denied.

3

Exoo separately moved to dismiss Plaintiffs’ RICO claims in the SAC pursuant to Federal Rule
of Civil Procedure 12(b)(6) and the claims asserted by all Plaintiffs except D’Ambly pursuant to
Federal Rule of Civil Procedure 12(b)(2). D.E. 119. In denying Exoo’s motion to strike, the Court
is not addressing whether Plaintiffs’ amendments cure any of the identified deficiencies. Instead,
the Court will address Exoo’s arguments to this effect in a separate opinion, along with Defendants
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III.

MOTION FOR SANCTIONS
Before addressing the merits of a Rule 11 motion for sanctions, a court must ensure that

the party seeking sanctions complied with the “safe harbor” provision of the rule. Rule 11
sanctions are only permissible after the party against whom sanctions are sought has notice of the
alleged violation “and a reasonable opportunity to respond.” Fed. R. Civ. P. 11(c)(1). To that end,
a motion for sanctions can only be filed 21 days after the party seeking sanctions serves the motion
on the party against whom sanctions are sought. Fed. R. Civ. P. 11(c)(2). See Petit-Clair v. New
Jersey, No. 14-7082, 2016 WL 1568282, at *1 (D.N.J. Apr. 18, 2016). If a party fails to comply
with the safe harbor provision, the motion for sanctions must be denied. Scott v. Bd. of Educ. of
City of E. Orange, No. 01-4171, 2006 WL 3675278, at *18 (D.N.J. Dec. 12, 2006). Here, Exoo
complied with the safe harbor provision. Marlborough Decl. ¶ 6, Ex. D.
Turning to the merits of Exoo’s request for sanctions, Exoo contends that Plaintiffs should
be sanctioned for their unauthorized amendments to the SAC, Sanctions Br. at 7-8, and because
Plaintiffs again seek relief under a criminal statute with no private right of action, id. at 8-11. Rule
11(b) imposes on any party who presents “a pleading, motion, or other paper . . . an affirmative
duty to conduct a reasonable inquiry into the facts and the law before filing, and that the applicable
standard is one of reasonableness under the circumstances.” Bus. Guides, Inc. v. Chromatic
Commc’ns Enters., Inc., 498 U.S. 533, 551 (1991). “[R]easonableness [under the circumstances
is] defined as an objective knowledge or belief at the time of the filing of a challenged paper that
the claim was well-grounded in law and fact.” Ford Motor Co. v. Summit Motor Prods., Inc., 930
F.2d 277, 289 (3d Cir. 1991) (citations and internal quotations omitted). Thus, attorneys are

St. Lawrence University, Vijaya Gadde, and Twitter, Inc.’s pending motions to dismiss the SAC
pursuant to Rules 12(b)(2) and 12(b)(6). D.E. 116, 117.
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required to conduct a “normally competent level of legal research to support the[ir] presentation.”
Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir. 1994). However, “Rule 11 is intended to impose
sanctions ‘only in the exceptional circumstance, where a claim or motion is patently unmeritorious
or frivolous.’” Ballard v. AT&T Mobility, Inc., No. 15-8808, 2018 WL 3377713, at *4 (D.N.J.
July 11, 2018) (quoting Doering v. Union Cnty. Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d
Cir. 1988)).
If Rule 11(b) is violated, Rule 11(c) permits the Court to impose sanctions, including
reasonable attorneys’ fees, expenses, or nonmonetary directives. Fed. R. Civ. P. 11(c). Any
sanction, however, “must be limited to what suffices to deter repetition of the [sanctionable]
conduct[.]” Fed. R. Civ. P. 11(c)(4). “Generally, sanctions are prescribed only in the exceptional
circumstance where a claim or motion is patently unmeritorious or frivolous.” Ford Motor Co.,
930 F.2d at 289 (internal citations and quotations omitted). Additionally, “the imposition of
sanctions for a Rule 11 violation is discretionary rather than mandatory.” Grider v. Keystone
Health Plan Cent., Inc., 580 F.3d 119, 146 n.28 (3d Cir. 2009) (citation omitted). In deciding a
Rule 11 motion, “[a]ny doubt . . . should be resolved in favor of the party charged with the
violation.” Sanders v. Hale Fire Pump Co., No. 87-2468, 1988 WL 58966, at *1 (E.D. Pa. June
1, 1988) (citing Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 544 (3d Cir.
1985)).
As explained above, the Court concludes that Plaintiffs did not violate the Order granting
Plaintiffs leave to amend by including the additional Defendants and Count VII in the SAC. As a
result, Plaintiffs did not violate Rule 11(b) by including these allegations or parties in the SAC.
Exoo’s motion for sanctions is denied on these grounds.

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Exoo also seeks sanctions because Count VII alleges a violation of a criminal statute for
which there is no private right of action. Exoo argues that because this Court already dismissed
claims in the FAC on these grounds, Plaintiffs were on notice that Count VII was improper.
Sanctions Br. at 8-11. Plaintiffs do not specifically address this argument. Plaintiffs, however,
identify case law demonstrating that a violation of the LMRDA may constitute a predicate RICO
act to explain why they included Count VII in the SAC. Plfs. Opp. at 20-22. The Court, therefore,
cannot conclude that Plaintiffs’ decision plead a violation of the LMRDA was wholly
unreasonable. See Sanders, 1988 WL 58966, at *1 (citing Eavenson, Auchmuty & Greenwald,
775 F.2d at 544) (explaining that any doubts should be resolved in favor of the party against whom
sanctions are sought). Plaintiffs’ decision to plead a violation as a stand-alone claim, in light of
the Court’s prior explanation that criminal statutes usually do not afford a plaintiff with a private
right of action, Nov. 1 Opinion at 20-21, is questionable. But given the fact that Rule 11 sanctions
are discretionary and should only be imposed in only the most exceptional of circumstances, Ford
Motor Co., 930 F.2d at 289 (internal citations and quotations omitted), the Court will not impose
sanctions because Plaintiffs included Count VII in the SAC.
IV.

CONCLUSION

For the foregoing reasons, and for good cause shown,
IT IS on this 1st day of August, 2022,
ORDERED that Defendant Christian Exoo’s motion to strike (D.E. 115) is DENIED; and it
is further
ORDERED that Defendant Christian Exoo’s motion for sanctions (D.E. 112) is DENIED.

__________________________
John Michael Vazquez, U.S.D.J.
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