Ortega v. New Mexico Legal Aid, Inc. et al

Filing 114

ORDER by Magistrate Judge Kirtan Khalsa denying Plaintiff's Motion to Strike. Plaintiff's Motion to Strike (Doc. 89) is denied. Plaintiff will be ordered to pay reasonable attorneys' fees Defendant incurred in responding to Plaintiff's motion. Defendant may submit an affidavit and request for attorneys' fees by 8/30/2019. (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MINA ORTEGA,
Plaintiff,
vs.

Civ. No. 18-111 MV/KK

NEW MEXICO LEGAL AID, INC. et al.,
Defendants.
ORDER
THIS MATTER is before the Court on Plaintiff Mina Ortega’s Motion to Strike (Doc.
89), filed on June 6, 2019. Defendant New Mexico Legal Aid, Inc. (“NMLA”) filed a response
in opposition to the motion and a request for attorney’s fees on June 20, 2019, (Doc. 95); and,
Plaintiff filed a reply in support of the motion on July 11, 2019. (Doc. 102.) The Court has
considered the parties’ submissions, the record, and the relevant law. For the reasons that
follow, the Court finds that Plaintiff’s motion is not well-taken and should be DENIED, and that
Plaintiff should bear the reasonable cost of attorney’s fees NMLA incurred in responding to the
motion.
Plaintiff’s Amended Complaint was neither clear nor concise. (See, e.g., Doc. 58 at ns.2,
8, 16.) The allegations were variously inconsistent, confusing, and unnecessarily detailed to the
degree that NMLA moved for dismissal on the ground that Plaintiff violated Federal Rule of
Civil Procedure 8(a) by failing to clearly and concisely set forth her claims. (Doc. 16 at 17-20.)
The Court, constrained by the standards applicable to a motion to dismiss, liberally construed
Plaintiff’s Amended Complaint and ferreted out the substance of her claims, thereby allowing
Plaintiff to proceed in this litigation. In its Amended Answer to Plaintiff’s Amended Complaint,

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NMLA submitted responses and denials that appear reasonably designed to avoid inadvertently
admitting unclear factual allegations. (See Doc. 71.)
In her motion, Plaintiff urges the Court to strike from NMLA’s Amended Answer some
twenty-seven responsive paragraphs and an affirmative defense on the ground that they are
proffered in violation of Federal Rule of Civil Procedure 8. (Doc. 89 at 1-9.) NMLA seeks
summary dismissal of Plaintiff’s motion on the bases that: (1) the motion is untimely; and, (2)
Plaintiff did not comply with Local Rule 7.1, which requires a movant to make a good-faith
request for concurrence before filing a motion.

(Doc. 95 at 1-3.)

NMLA argues in the

alternative that Plaintiff’s motion should be denied on substantive grounds—namely, that her
Rule 8 objections do not come within the ambit of Rule 12(f) and that each challenged aspect of
its Amended Answer to Plaintiff’s Amended Complaint was valid for reasons discussed both in
the body of its response and in an attached table.1 (Doc. 95 at 8-12; Doc. 95-5.) The Court is
persuaded that Plaintiff’s motion should be summarily denied as untimely and lacking merit.
Plaintiff’s motion is founded, procedurally, on Federal Rule of Civil Procedure 12(f).
(Doc. 89 at 2.) Rule 12(f) allows a court to strike from a pleading “an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter,” either on its own or on a motion made
by a party within 21 days of being served with the pleading. Fed. R. Civ. P. 12(f). The Court
“possesses considerable discretion in disposing of a Rule 12(f) motion to strike”; however, such
motions are widely disfavored as purely cosmetic or a waste of time and “general judicial
agreement” is that they “should be denied unless the challenged allegations have no possible
relation or logical connection to the subject matter of the controversy[.]” 5C Charles A. Wright
et al., Fed. Prac. & Proc. § 1382 (3d ed. 2019). Because motions to strike generally waste the
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The fifteen-page table attached to NMLA’s response identifies every at-issue allegation in Plaintiff’s Amended
Complaint, NMLA’s corresponding answer, Plaintiff’s challenge to the answer, and NMLA’s justification of the
answer. (Doc. 95-5.)

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courts’ and litigants’ time and do not move the case along, the 21-day deadline is strictly
enforced. See Martinez v. Naranjo, 328 F.R.D. 581, 596 (D.N.M. 2018).
As an initial matter, Plaintiff filed her motion well after the 21-day time frame within
which it was permissible under Rule 12(f). NMLA’s Amended Answer to Plaintiff’s Amended
Complaint was filed on April 16, 2019. (Doc. 71.) Plaintiff filed the present motion fifty-one
days later, on June 6, 2019—thirty days later than Rule 12(f) permits. (Doc. 89.) On this basis
alone, Plaintiff’s motion is subject to summary dismissal.
Moreover, Plaintiff’s motion, though invoking the Court’s authority to strike under Rule
12(f), does not identify any of the responsive paragraphs in NMLA’s Amended Answer as
“redundant, immaterial, impertinent, or scandalous” such that they should be stricken pursuant to
Rule 12(f). Fed. R. Civ. P. 12(f). Instead, relying on speculation, argument, and linguistic
technicalities, Plaintiff posits that various of NMLA’s answers to the allegations in her Amended
Complaint were made in bad faith—which, notably, is not a ground for striking a matter under
Rule 12(f). Further deviating from the scope and purpose of Rule 12(f), Plaintiff urges the Court
not only to strike the offending answers, but also to deem the corresponding allegations in her
Amended Complaint admitted despite the fact that NMLA has asserted a general denial
comporting with Rule 8(b)(3)—a judicial act neither permitted by Rule 12(f) nor warranted
under the circumstances of this case. The Court’s authority under Rule 12(f) to strike matters
that are redundant, immaterial, impertinent, or scandalous does not extend so far that the Court
may convert a denial into an admission, nor is the Court so inclined. Because Plaintiff’s motion
is untimely and seeks relief outside the purview of the Court’s authority under Rule 12(f), it shall
be summarily denied.

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Not only was Plaintiff’s motion to strike untimely and ill-founded, but also its filing
might have been circumvented had Plaintiff complied with Local Rule of Civil Procedure 7.1(a).
Rule 7.1(a) requires a movant to confer with the opposing party in good faith to determine
whether a motion is opposed.

D.N.M. LR-Civ. 7.1(a).

Rule 7.1(a) is “not meant to be

perfunctorily satisfied. It is designed to encourage parties to contact each other . . . and work out
mutually agreeable solutions to” certain disputes. Benavidez v. Sandia Nat’l Labs., 319 F.R.D.
696, 723 (D.N.M. 2017). Rule 7.1(a) is intended, among other things, to allow the parties to
negotiate an agreed-upon solution and avoid the use of scarce judicial resources to resolve
disputes that the parties can expeditiously resolve themselves. See id.
Here, documentation submitted by NMLA shows that Plaintiff contacted NMLA’s
counsel at 3:00 p.m. on the eve of filing her motion to strike, demanding that NMLA amend its
Amended Answer to her Amended Complaint by the next morning to avoid litigating the motion.
(Doc. 95-1.) In her communication, Plaintiff did not clarify what specific amendments she
sought, nor did she accept opposing counsel’s invitation to schedule a call to discuss the matter.
(Id.; Doc. 95-3.) The time within which to file a motion to strike had long since expired when
this communication occurred, and Plaintiff’s urgent demand therefore appears to have been an
exercise in gamesmanship—an inference further supported by documentation of the parties’
subsequent negotiations regarding the motion. (Doc. 95 at 12-13; Doc. 95-3.) This, combined
with Plaintiff’s conscious disregard of the time frame within which a Rule 12(f) motion was
permissible, (see, e.g., Docs. 95-3, 95-7), and the lack of merit in her motion to strike, justifies
the imposition of sanctions against Plaintiff under 28 U.S.C. § 1927.
Section 1927 provides that
[a]ny attorney or other person admitted to conduct cases in any court of the
United States . . . who so multiplies the proceedings in any case unreasonably and
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vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927; Auto-Owners Ins. Co. v. Summit Park Townhome Ass'n, 886 F.3d 863, 871
(10th Cir. 2018). “A lawyer’s reckless indifference to the law may impose substantial costs on
the adverse party. Section 1927 permits a court to insist that the attorney bear the costs of his
own lack of care.” Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998). Here,
Plaintiff’s reckless indifference to the limitations of Rule 12(f) and her failure to abide by the
text and tenor of Local Rule 7.1 caused NMLA to expend resources responding to a meritless
and untimely motion. Plaintiff should bear at least some of the cost of this lack of care. NMLA
may, accordingly, submit an affidavit and request for attorneys’ fees incurred in responding to
Plaintiff’s motion to strike, which shall be granted insofar as the Court deems it reasonable under
all of the circumstances, including Plaintiff’s in forma pauperis status.
For the reasons stated herein, IT IS HEREBY ORDERED that:
(1) Plaintiff ‘s Motion to Strike (Doc. 89) is DENIED;
(2) Plaintiff will be ordered to pay reasonable attorneys’ fees NMLA incurred in
responding to Plaintiff’s Motion to Strike; and,
(3) NMLA may submit an affidavit and request for attorneys’ fees on or before August
30, 2019.
IT IS SO ORDERED.
___________________________
KIRTAN KHALSA
United States Magistrate Judge

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