Dotson v. City of Syracuse et al
MEMORANDUM-DECISION & ORDER: It is ordered that defendant's # 40 Motion to Strike is GRANTED and the references to pornography, in paragraphs 28(a), 31, 33, 51 and 63 are STRICKEN from the # 39 Second Amended Complaint. A third amended complaint need not be filed. This matter is returned to Magistrate Judge Andrew T. Baxter for all further pretrial matters. Signed by Senior Judge Norman A. Mordue on 2/7/2014. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CITY OF SYRACUSE; GARY MIGUEL, in his
individual capacity as former Chief of Police of the
City of Syracuse; MICHAEL HEENAN, in his
individual capacity as former First Deputy Chief of
Police of the City of Syracuse; DAVID
BARRETTE, in his individual and official capacity
as First Deputy Chief of Police of the City of
Syracuse; JUDY CULETON, in her individual and
official capacity as the Commanding Officer of the
Human Resources Division of the City of Syracuse
Police Department; JOSEPH SWEENY, in his
individual and official capacity as a Captain with
the City of Syracuse Police Department;
NICHOLAS KLEIST, JR., in his individual and
official capacity as a Lieutenant with the City of
Syracuse Police Department; RICHARD
TRUDELL, in his individual and official capacity
as a Captain with the City of Syracuse Police
Department; and JOHN DOE(S) and/or JANE
DOE(S), in their individual and official capacities,
Bosman Law Firm, L.L.C.
6599 Martin Street
Rome, New York 13440
A.J. Bosman, Esq.
Mary Anne Doherty, Esq.
Corporation Counsel of the City of Syracuse
300 City Hall
Syracuse, New York 13202
Shannon T. O’Connor, Esq.
Assistant Corporation Counsel
Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM DECISION AND ORDER
Defendants move (Dkt. No. 39) pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure to strike allegations in plaintiff’s second amended complaint (Dkt. No. 39). Plaintiff
opposes defendants’ motion. (Dkt. No. 42).
In a Memorandum-Decision and Order entered on March 27, 2013 (Dkt. No. 36), the
Court granted defendants’ motion to give preclusive effect to the issues of the initiation of the
criminal prosecution against plaintiff and pornography, which were litigated in Dotson v. City of
Syracuse; The City of Syracuse Police Department; Former Chief of Police Dennis Duval; Sgt.
Timothy Gay; Mark McCardle; Patrick Harrington; Michael Rathbun, 5:04-CV- 1388
(NAM/ATB) (“Dotson I”). Plaintiff’s second amended complaint, however, refers to
pornography in the workplace five times. See Dkt. No. 39, ¶¶ 28(a), 31, 33, 51 and 63.
Rule 12(f) of the Federal Rules of Civil Procedure states, in relevant part: “The court may
strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” The Second Circuit has cautioned that a motion to strike should not be
granted “unless there is a strong reason for so doing.” Lipsky v. Commonwealth United Corp.,
551 F.2d 887, 893 (2d Cir. 1976). A court must deny any motion made pursuant to Rule 12(f) on
the ground that the matter in the Complaint is impertinent and immaterial “unless it can be shown
that no evidence in support of the allegation would be admissible.” Id. (citations omitted). To
prevail on a motion to strike, a defendant must show, among other things, that allowing the
challenged allegations to stand would result in prejudice to the defendant. Roe v. City of New
York, 151 F.Supp.2d 495, 510 (S.D.N.Y. 2001). Thus, “courts should not tamper with the
pleadings unless there is a strong reason for so doing.” Lipsky, 551 F.2d at 893.
The Court grants defendants’ motion to strike all references to pornography from the
second amended complaint. The Court previously granted defendants’ motion to preclude
plaintiff from raising the issue of pornography in the workplace. Dkt. No. 36, p.16. No evidence
in support of the allegation of pornography in the workplace will be admissible in this case.1
Allowing any allegation regarding pornography in the workplace to stand would greatly prejudice
defendants, who litigated this issue exhaustively in Dotson I.
Accordingly, it is hereby
ORDERED that defendants’ motion to strike (Dkt. No. 40) is GRANTED and the
references to pornography, in paragraphs 28(a), 31, 33, 51 and 63 are stricken from the second
amended complaint. A third amended complaint need not be filed; and it is further
ORDERED that this matter is returned to United States Magistrate Judge Andrew T.
Baxter for all further pretrial matters.
IT IS SO ORDERED.
Date: February 7, 2014
Although plaintiff asserts in her motion papers that “there continue to be pornographic
images displayed in view of female employees in the Syracuse Police Department”, this
assertion is unsupported and no allegations of new instances of pornography in the workplace are
contained in any pleading.
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