Eng v. Podolnick et al
Filing
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MEMORANDUM OPINION & ORDER. Accordingly, pursuant to Rule 12(f), the Court strikes the last four paragraphs of part III of plaintiff's complaint. Plaintiff shall file an amended complaint not containing the stricken portions or any other 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 am ended complaint will result in the dismissal of this action with prejudice. The Clerk of Court is directed to remove plaintiff's initial complaint (ECF No. 2) from ECF. (Signed by Judge Katherine B. Forrest on 10/20/2014) Copies Mailed By Chambers. (lmb)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DOC#:~~~~~~
DATE FILED:
OCT 2 0 2014
KENNETH ENG,
Plaintiff,
14-cv-4675 (KBF)
MEMORANDUM
OPINION & ORDER
-vLAURA PODOLNICK et al.,
Defendants.
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KATHERINE B. FORREST, District Judge:
On June 12, 2014, prose plaintiff Kenneth Eng ("plaintiff') filed this action
seeking $10,000 in damages stemming from alleged violations of his copyright in
"The 0th Dimension," a screenplay he wrote some years ago. (ECF No 2.) Plaintiffs
complaint is replete with racist and anti-Semitic epithets and other insults aimed at
defendants.
Under Rule 12(£) 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(£). 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-1 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, anti-Semitic, and insulting 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
plaintiffs copyright in "The
Oth
Dimension." 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).
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If plaintiff wants this Court to consider his copyright infringement claim on the
merits, the language in his pleadings and submissions must be respectful and
dignified.
Accordingly, pursuant to Rule 12(£), the Court strikes the last four
paragraphs of part III of plaintiffs complaint. Plaintiff shall file an amended
complaint not containing the stricken portions or any other 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 initial complaint (ECF No.
2) from ECF.
SO ORDERED.
Dated:
New York, New York
Octoberdo__, 2014
KATHERINE B. FORREST
United States District Judge
Copy to:
Kenneth Eng
P.O. Box 527 315
Flushing, NY 11352
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