Eng v. Casey et al
MEMORANDUM OPINION & ORDER. Accordingly, pursuant to Rule 12(f), the Court strikes plaintiff's amended complaint. Plaintiff shall file a second amended complaint not containing any racist, anti-Semitic, or insulting language not later than fou rteen (14) days after the issuance of this Order. Failure to comply with this Order either with regard to the deadline for filing an amended complaint or with regard to the substance of the amended complaint will result in the dismissal of this action with prejudice. The Clerk of Court is directed to remove plaintiff's amended complaint (ECF No. 6) from ECF. (Signed by Judge Katherine B. Forrest on 11/6/2014) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: NOV
0 7 2014
OPINION & ORDER
DAN CASEY et al.,
KATHERINE B. FORREST, District Judge:
On May 8, 2014, prose plaintiff Kenneth Eng ("plaintiff') filed this action
seeking $5,000,000 in damages stemming from alleged violations of his copyrights
in several screenplays he wrote some years ago. (ECF No 2.) Plaintiff filed an
amended complaint on August 21, 2014. (ECF No. 6.) Plaintiffs amended
complaint is replete with racist epithets and contains insults aimed at defendants.
Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may on its
own initiative strike from a pleading "any redundant, immaterial, impertinent, or
scandalous matter." Fed. R. Civ. P. 12(f). The Court has considerable discretion to
strike such material, G.L.M. Sec. & Sound, Inc. v. LoJack Corp., No. 10-CV-4701
(JS)(ARL), 2012 WL 4512499, at *7 (E.D.N.Y. Sept. 28, 2012) (citing RochesterGenesee Reg'l Transp. Auth. v. Hynes-Cherin, 531 F. Supp. 2d 494, 519 (W.D.N.Y.
2008)), though it must have a "strong reason for doing so," G-I Holdings, Inc. v.
Baron & Budd, 238 F. Supp. 2d 521, 555 (S.D.N.Y. 2002) (quoting Lipsky v.
Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)).
Matter should not be stricken from a pleading unless it "clearly can have no
possible relation to the matter in controversy." TouchTunes Music Corp. v. Rowe
Int'l Corp., No. 07 Civ. 11450, 2010 WL 3910756, at *4 (S.D.N.Y. Oct. 5, 2010)
(quotation and internal quotation marks omitted); see also Mikropul Corp. v.
DeSimone & Chaplin-Airtech, Inc., 599 F. Supp. 940, 945 (S.D.N.Y. 1984). Even
when matter in a pleading is relevant to the controversy, it may nevertheless be
stricken if it is scandalous. Cabble v. Rollieson, No. 04CIV9413LTSFM, 2006 WL
464078, at *11 (S.D.N.Y. Feb. 27, 2006) (citing Gleason v. Chain Serv. Rest., 300 F.
Supp. 1241, 1257 (S.D.N.Y. 1969)). An allegation is scandalous if it "reflects
unnecessarily on the defendant's moral character, or uses repulsive language that
detracts from the dignity of the court." Wermann v. Excell Dentistry, P.C., No. 13
Civ. 7028(DAB), 2014 WL 846723, at *5 (S.D.N.Y. Feb. 25, 2014) (quoting Cabble,
2006 WL 464078, at *11).
The racist and needlessly inflammatory language in plaintiffs complaint is
immaterial, impertinent, and scandalous-it is repugnant as a general matter, and
also entirely irrelevant to any determination as to whether defendants infringed
any of plaintiffs copyrights. The Court notes that plaintiff has been repeatedly
warned of the consequences of continually filing frivolous actions in the Eastern
District of New York and the Southern District of New York. See Eng v. Creators of
the Philosoraptor Website, 14-cv-4948 (LAP) (S.D.N.Y. Sept. 16, 2014). He has also
previously been warned by this Court about filing pleadings containing racist, antiSemitic, and insulting language. See Eng v. Podolnick, No. 14-cv-04675 (KBF),
2014 WL 5470500 (S.D.N.Y. Oct. 20, 2014). If plaintiff wants this Court to consider
his copyright infringement claims on the merits, the language in his pleadings and
submissions must be respectful and dignified.
Accordingly, pursuant to Rule 12(£), the Court strikes plaintiffs amended
complaint. Plaintiff shall file a second amended complaint not containing any
racist, anti-Semitic, or insulting language not later than fourteen (14) days after the
issuance of this Order. Failure to comply with this Order either with regard to the
deadline for filing an amended complaint or with regard to the substance of the
amended complaint will result in the dismissal of this action with prejudice.
The Clerk of Court is directed to remove plaintiffs amended complaint (ECF
No. 6) from ECF.
New York, ~ew York
November _(p_, 2014
KATHERINE B. FORREST
United States District Judge
4266 Saull Street
Flushing, NY 11355
P.O. Box 527 315
Flushing, NY 11352
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