Schoolcraft v. The City Of New York et al

Filing 249

MEMORANDUM OF LAW in Opposition to plaintiff's motion to strike. Document filed by Steven Mauriello(Tax Id. 895117 in his official capacity), Steven Mauriello(Tax Id. 895117, Individually). (Kretz, Walter)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10-CV-06005 (RWS)
THE CITY OF NEW YORK, et al.,
Defendants.
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DEFENDANT MAURIELLO’S MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE
AN ALLEGATION FROM MAURIELLO’S COUNTERCLAIMS

Preliminary Statement
On behalf of defendant Steven Mauriello, we submit this memorandum of
law in opposition to plaintiff’s motion to strike an allegation from Mauriello’s
counterclaims on the grounds that it is false, inflammatory and irrelevant. In truth, the
challenged allegation is a precisely quoted statement of plaintiff uttered in
circumstances accurately described – and it was recorded by the plaintiff himself in a
recording that has been preserved. It is not inflammatory, but revealing, and highly
relevant as evidence that provides part of the story of plaintiff’s true bias and motivation.
It will help at trial, along with several other similarly bigoted statements, to undermine
the false foundation plaintiff has tried to create to support his fictional account of the
events at issue.
In the end, the challenged statement and others like it will help defeat
plaintiff’s claims as well as yield a verdict in Steven Mauriello’s favor on his
counterclaims.

ARGUMENT
STRIKING THE CHALLENGED STATEMENT FROM
THE COUNTERCLAIMS PURSUANT TO RULE 12(f)
IS A DRASTIC REMEDY NOT WARRANTED
UNDER THE CIRCUMSTANCES OF THIS CASE
The Second Circuit has made clear that striking an allegation from a
complaint pursuant to Rule 12(f) of the Federal Rules is a “drastic remedy”, and
“motions under Rule 12(f) are viewed with disfavor and are infrequently granted.” FRA
S. p. A. v. Surg-O-Flex of America, Inc., 415 F.Supp. 421, 427 (S.D.N.Y 1976) (citations
omitted). According to the Court in Surg-O-Flex, “[u]nless it is clear that the portion of
the pleading has no bearing on the subject matter of the litigation and that its inclusion
will prejudice the defendant, the complaint should remain intact.” Id. In a more recent
articulation of how a district court should approach a motion to strike, the Court in
Hargett v. Metropolitan Transit Authority, 552 F.Supp.2d 393 (S.D.N.Y.2008), observed
as follows:
As a general rule, motions to strike are not favorably viewed, and will be
granted only where ‘there is a strong reason for so doing.’ To prevail on a
motion to strike, the defendant [in this case, the plaintiff] must show that:
‘(1) no evidence in support of the allegations would be admissible; (2) the
allegations have no bearing on the relevant issues; and (3) permitting the
allegations to stand would result in prejudice to the movant.’
Id. at 404. This Court simply will not be in a position to make such determinations until
the case is presented at trial. See Federated Dept. Stores, Inc. v. Grinnell Corp., 287
F.Supp. 744 (S.D.N.Y. 1968) (it is well-established that “it must clearly appear that the
matters alleged can have no possible bearing on the issues of the trial”) (quoting
Fleischer v. A. A. P., Inc., 180 F.Supp. 717, 721 (S.D.N.Y. 1959).
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Here, it simply can not be said that plaintiff’s apparent bias against African
Americans has no possible bearing on the issues. The quoted comment as well as
others, some of which plaintiff also recorded, reveal a bias or bigotry that appears to
have had a significant impact on plaintiff’s performance as a police officer, and thus will
have a direct bearing on a jury’s assessment of plaintiff’s ridicule of his performance
evaluation. It also will shed light on other incidents leading up to the events of October
31, 2009, that will help a jury properly evaluate that incident. In addition, the quoted
comments undermine the portrayal plaintiff has tried to create of himself – as a person
out to fight for the interests of the minority community served by the 81st Precinct, in a
way that no one else at the Precinct was willing to do. That portrayal will be exposed at
trial as nonsense with the help of the challenged allegation. The challenged allegation
as well as the other similarly bigoted comments will thus also help us demonstrate that
the plaintiff maliciously maligned Steve Mauriello under false pretenses. They also will
help us show plaintiff engaged in improper conduct not only to do Mauriello harm, but
also to improperly yield a monetary recovery for the plaintiff in this lawsuit. Quite
simply, the challenged comment and the other similar comments to be exposed at trial
will help put this entire dispute in a whole new light that will help defeat plaintiff’s claims
and yield a verdict for Steven Mauriello on his counterclaims.
On the issue of striking matter deemed by the movant to be scandalous, in
Hargett, supra, the MTA had asked the Court to strike allegations of sensational abuses
of the MTA’s e-mail policy by non-party employees that went unchallenged by the MTA
(e.g., electronically transmitting pornographic material within as well as outside the
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agency). Plaintiff made such allegations in an attempt to show that the MTA engaged in
racially discriminatory action when it disciplined plaintiff for violating that same e-mail
policy. The Court denied the motion to strike, despite the sensational nature of the
allegations, finding that the MTA failed to satisfy the three requirements recited by the
Court.
So, too, in von Bulow by Auersperg v. von Bulow, 657 F.Supp. 1134
(S.D.N.Y.1987), a Rule 12(f) motion to strike portions of the complaint “as containing
‘impertinent’ or ‘scandalous’ matter” was denied. The Court confirmed that “motions to
strike ‘are not favored and will not be granted unless it is clear that the allegations in
question can have no possible bearing on the subject matter.” Id. at 1146. The von
Bulow Court also observed, as the Second Circuit has instructed, that “the courts should
not tamper with the pleadings unless there is a strong reason for so doing.” Id., quoting
Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir.1976).
In von Bulow, there also is a discussion that reflects to some degree the
circumstances here -- to the extent that plaintiff seeks to strike an allegation against him
that he has made against one of the defendants (i.e., the use of the N-word). The von
Bulow Court refused to strike the challenged allegation, explaining, among other things,
as follows:
[a]lthough the complaint describes Auersperg's motives in tones ranging
from cynical to caustic, Auersperg previously leveled volatile accusations
against von Bulow in the 1985 civil action, which alleges that von Bulow
attempted to murder Martha von Bulow and fraudulently acquired her
property. Given the tenor of Auersperg's complaint, he is ‘hardly in a
position to complain when plaintiff responds in kind.’
von Bulow, supra, at 1146 (citations omitted).
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Finally, in Lynch v. Southampton Animal Shelter Foundation Inc., 278
F.R.D. 55 (E.D.N.Y. 2011), the Court engaged in an extensive analysis of the issues
raised by a motion to strike, much of which is instructive here. In Lynch, the plaintiff
challenged the denial of her volunteer application at an animal shelter. In the complaint,
the plaintiff set forth detailed allegations about the defendants’ “involvement in the cruel
and unnecessary treatment of animals,” which the Court concluded could properly be
considered scandalous or inflammatory. According to the Court, however, “[o]n a
motion to strike . . . ‘[i]t is not enough that the matter offends the sensibilities of the
objecting party if the challenged allegations describe acts or events that are relevant to
the action.’” Id. at 64-65 (citations omitted). One of the cases relied upon by the Court
in Lynch was Illiano v. Mineola Union Free School Dist., 585 F.Supp.2d 341, 357
(E.D.N.Y.2008), in which the Court denied a motion to strike allegations “pertaining to a
defendant's alleged anti-Semitic remarks because they were relevant to gender-based
hostile work environment claims and retaliation claims.” Lynch, supra, at 65.
The Lynch Court found that the plaintiff’s allegations about animal cruelty
were “relevant both to establishing that her speech addressed matters of public concern
and to provide the background, motivation, context, and content of her speech . . . that
serve as the basis for her retaliation claims.” Id. The Court also found that the
defendants “failed to show that they are prejudiced by the allegations relating to the
Shelter's policies and practices.” Among other things, the Court observed that
the Defendants concern about prejudice resulting from the jury seeing the
allegedly irrelevant, scandalous, or inflammatory material is unfounded. As
is the practice of this Court, the jury will only see such allegations if the
Court ultimately determines that they are relevant and admissible under
the Federal Rules of Evidence.
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Id. at 67.
Here, of course, the same is true. This Court will make the final
determination at trial as to what evidence will be admitted. Clearly, the challenged
allegation quotes plaintiff making what all should consider a scandalous, offensive
comment. Yet, the comment is not unlike comments plaintiff attributes to one of the
other defendants, and there is no doubt it has a clear bearing on critical issues that are
likely to strongly influence the outcome not only of the claims in the complaint, but the
counterclaims as well. Plaintiff cannot claim undue prejudice at having his true bias and
motivations revealed.
CONCLUSION
Based upon the foregoing, it is respectfully requested that plaintiff’s motion
to strike be denied in its entirety, and that the Court grant such other relief as it deems
just.

Dated:

New York, New York
April 24, 2014
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorneys for Defendant Steven Mauriello

By:

________________________
Walter A. Kretz, Jr.
444 Madison Avenue, 30th Floor
New York, NY 10022

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