Nungesser v. Columbia University et al

Filing 70

MEMORANDUM OPINION AND ORDER re: 55 MOTION to Strike Portions of the Second Amended & Supplemented Complaint filed by Lee C. Bollinger, Thomas Vu-Daniel, Jon Kessler, Trustees of Columbia University, Columbia University. Becaus e the Court does not conclude that the challenged portions of the SAC would work prejudice on Defendants if not stricken, Defendants' motion to strike is DENIED. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 55. SO ORDERED. (Signed by Judge Gregory H. Woods on 3/23/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PAUL NUNGESSER,
:
:
Plaintiff, :
:
-v :
:
COLUMBIA UNIVERSITY, TRUSTEES OF
:
COLUMBIA UNIVERSITY, LEE C.
:
BOLLINGER, JON KESSLER, THOMAS VU- :
DANIEL, and MARIANNE HIRSCH,
:
:
Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 3/23/2017

1:15-cv-3216-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
In 2013, Columbia University student Emma Sulkowicz filed a complaint with the University
alleging that fellow student Paul Nungesser had raped her. After an investigation, a hearing panel
convened by Columbia found that Nungesser was “not responsible.” In this suit, Nungesser seeks
redress from Columbia for alleged violations of Title IX of the Education Amendments of 1972
arising from events that ensued―most notably, Sulkowicz’s senior thesis performance art project
entitled “Mattress Project: Carry That Weight,” which attracted widespread media attention.
Nungesser also brings various state-law claims against Columbia and the individual defendants.
Defendants have moved to strike certain portions of the Second Amended and Supplemented
Complaint (“SAC”). ECF No. 55. For the reasons below, Defendants’ motion to strike is
DENIED.
I.

LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(f), a court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to
strike are generally disfavored, and “courts should not tamper with the pleadings unless there is a
strong reason for so doing.” E.g., City of New York v. Fedex Ground Package Sys., Inc., 314 F.R.D. 348,

354 (S.D.N.Y. 2016) (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976));
see also Allocco v. Dow Jones & Co., No. 02-cv-1029 (LMM), 2002 WL 1484400, at *1 (S.D.N.Y. July
10, 2002) (stating that motions to strike “will not be granted unless it is clear that the allegations in
question can have no possible bearing on the subject matter of the litigation” (internal quotation
marks and citation omitted)). To prevail on a motion to strike, “a party must demonstrate that (1)
no evidence in support of the allegations would be admissible; (2) that the allegations have no
bearing on the issues in the case; and (3) that to permit the allegations to stand would result in
prejudice to the movant.” Landesbank Baden-Württemberg v. RBS Holdings USA Inc., 14 F. Supp. 3d
488, 497 (S.D.N.Y. 2014) (citation omitted). “Federal courts have discretion in deciding whether to
grant motions to strike.” Allocco, 2002 WL 1484400, at *1 (citation omitted).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Rule 8(d) requires pleadings to
be “simple, concise, and direct.” In addition to the grounds stated expressly in Rule 12(f), the Rule
“is designed to reinforce the requirement in Rule 8[(d)] that pleadings be simple, concise, and
direct.” In re Merrill Lynch & Co. Inc. Research Reports Sec. Litig., 218 F.R.D. 76, 78 (S.D.N.Y. 2003).
“[U]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who
must respond to it because they are forced to select the relevant material from a mass of verbiage.”
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1281). “When a complaint does not comply with the requirement that it be short
and plain, the court has the power . . . to strike any portions that are redundant or immaterial . . . or
to dismiss the complaint.” Id.; see also Blakely v. Wells, 209 F. App’x 18, 20 (2d Cir. 2006) (“The
district court acted within the bounds of permissible discretion in dismissing the second amended
complaint for noncompliance with Rule 8(a). The pleading, which spanned 57 pages and contained
597 numbered paragraphs, was far from short or plain.”); Amsterdam v. Office of Hawaiian Affairs, cv.

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No. 10-00525, 2011 WL 3585864, at *5 (D. Haw. Aug. 16, 2011) (dismissing complaint for failure to
comply with Rule 8(d)).
II.

DISCUSSION
In addition to well-pleaded factual allegations, the prolix SAC, in its 100 pages, 273
numbered paragraphs, and 157 footnotes, contains a great deal of extraneous matter. This includes
arguments, a gender-swapping hypothetical, descriptions of social science articles, citations to case
law and agency guidance, rhetorical questions, Greek chorus-style commentary, and even outright
polemics. Indeed, large portions of the SAC read more like a brief than a pleading submitted in a
counseled case. Nungesser, through his counsel, has rendered the Court’s task far more difficult and
time consuming than necessary by ignoring Rule 8(d)’s requirement that a complaint’s allegations be
simple, concise, and direct and Rule 8(a)’s requirement that the statement of his claims be “short and
plain.” Nevertheless, in light of the general disfavor toward motions to strike, and because the
Court does not conclude that Defendants will be prejudiced by denial of the motion, the Court
declines to grant Defendants’ motion.
That the Court has declined to grant Defendants’ motion does not mean that the Court will
consider all of the challenged portions of the SAC in ruling on Defendants’ motion to dismiss.
While a court must “accept all facts alleged in the complaint as true,” Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam) (emphasis added), that requirement does not
apply to matters that are not facts. That includes legal conclusions, Iqbal, 556 U.S. at 679,
“hypothetical speculation,” Solow v. Citigroup, Inc., 827 F. Supp. 2d 280, 289 (S.D.N.Y. 2011), and
arguments, Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

III.

CONCLUSION
Because the Court does not conclude that the challenged portions of the SAC would work
prejudice on Defendants if not stricken, Defendants’ motion to strike is DENIED.

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The Clerk of Court is directed to terminate the motion pending at Dkt. No. 55.
SO ORDERED.
Dated: March 23, 2017
New York, New York

_____________________________________
GREGORY H. WOODS
United States District Judge

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