Smith v. Mission Hospital

Filing 16

ORDER granting 12 MOTION to Strike 10 and 11 Responses in Opposition to Motion 7 . The Court STRIKES Plaintiff's Responses [10 & 11] from the docket. Court DIRECTS Plaintiff to thoroughly read Defendant's Motion to Dismiss 7 and file a response within two weeks of the entry of this Order. Responses due by 1/22/2018 (plus an additional 3 days if served by mail). Signed by Magistrate Judge Dennis Howell on 01/08/18. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17 cv 220
BECKY A. SMITH,

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Plaintiff,
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v.
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MISSION HOSPITAL,
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Defendant.
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___________________________________ )

ORDER

Pending before the Court is Defendant’s Motion to Strike [# 12]. On August
14, 2017, pro se Plaintiff filed her Complaint [# 1]. On September 12, 2017, Plaintiff
filed her Amended Complaint [# 4]. On October 30, 2017, Defendant filed its
Motion to Dismiss for Failure to State a Claim [# 7]. On November 16, 2017,
Plaintiff filed a Response to the motion to dismiss [# 10]. On November 17, 2017,
Plaintiff filed an additional Response to the motion to dismiss [# 11]. On November
27, 2017, Defendant filed its Motion to Strike Plaintiff’s Responses [# 12].
Defendant asks the Court to strike Plaintiff’s responses because the responses do not
directly respond to Defendant’s Motion to Dismiss and attempt to supplement the
Amended Complaint with facts and evidence.
Background. In the Amended Complaint, Plaintiff alleges employment
discrimination, including termination, based on sex and religion [# 4]. Plaintiff’s

Amended Complaint contains: (1) WDNC–EEOC Complaint form; (2) a typed
narrative of the allegations; and (3) a list of other people Plaintiff believes Defendant
has discriminated against.
Defendant’s Motion to Dismiss and Memorandum in Support responds to the
Amended Complaint stating that it lacks the facts to allege employment
discrimination [# 7 & 8].
In Plaintiff’s first response, Plaintiff requests that the Motion to Dismiss be
denied [# 10]. Plaintiff states that she submits a response that she created during an
EEOC investigation. Plaintiff then states that “I have copies of documents, receipts,
phone records, texts [sic] messages, emails, faces, supporting everything that can
back up the evidence to prove and support this case in a court of Law” [# 10]. The
remaining thirty-three pages of the first response include copies of:
 Emails between Plaintiff and an EEOC investigator
 A PowerPoint presentation on social media in the workplace (including
Facebook)
 Emails between Plaintiff and an employee of Mission Hospital
 A Mission Hospital FMLA Request for Leave form
 A four-page handwritten narrative of an alleged HIPPA violation
 Job postings for which Plaintiff had applied
 A receipt for a legal consultation

 Two “transmission verification” reports
 A Patient Safety Confidentiality Complaint from the Department of
Health and Human Services: Office of Civil Rights
 Copies of visit summaries from two medical visits between Plaintiff
and her doctor [# 10]
Plaintiff’s second response is one page and states that Plaintiff could have
asked for $1,000,000 in damages [# 11]. Plaintiff then states that for relief, in
addition to the alleged $450,000 in damages, Plaintiff wants her house paid off, her
car paid off, her credit card paid off, and her credit repaired [# 11].
The materials included in Plaintiff’s responses fall outside the Amended
Complaint and fail to directly respond to Defendant’s Motion to Dismiss.
Legal Standards. Under Local Civil Rule 7.1(e), a “reply brief should be
limited to a discussion of matters newly raised in the response.”
Under Fed. R. Civ. P. 12(f), the “Court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter” either sua sponte or upon motion. See Simaan, Inc. v. BP Products North
American, Inc., 395 F. Supp. 2d 271, 278 (M.D.N.C. 2005).
The Court has three options regarding Plaintiff’s Responses: (1) the Court
could allow the materials; (2) the Court could ignore the materials; or (3) the Court
could strike the Responses.

If the Court allowed the materials in Plaintiff’s Responses, Fed. R. Civ. P.
12(d) would require the Court to treat the Motion to Dismiss as a motion for
summary judgment.
The other two options have the same practical effect of not considering the
outside materials. A court may either ignore the materials or go an ‘extra step’ and
strike them at its discretion. See McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th
Cir. 2010) (J., Agee, concurring in part and dissenting in part); Brown v. Bank of
America, 2012 WL 380145 at *6 (D. Md. Feb 3, 2012).
Discussion. The Court does not believe that pro se Plaintiff has intended to
convert the Motion to Dismiss to a motion for summary judgment. Because the
Court does not believe that Plaintiff intended to convert the Motion to Dismiss into
a motion for summary judgment, the Court will either ignore or strike Plaintiff’s
Responses when considering Defendant’s Motion to Dismiss.
Defendant has moved to strike Plaintiff’s Responses. See Dickens v. Werner
Enterprises, Inc., 1:12cv76, 2012 WL 3061503 at *1 (N.D. Va. July 26, 2012); Cars
Unlimited II, Inc. v. National Motor Co., 472 F. Supp. 2d 740, 750 n.9 (E.D. Va.
2007). While not required, the Court finds good cause to strike Plaintiff’s Responses
including striking sensitive personal medical information of the Plaintiff.
Therefore, the Court GRANTS the motion [# 12]. The Court STRIKES
Plaintiff’s Responses [# 10 & 11] from the docket.

The Court recognizes that pro se plaintiffs are at a disadvantage with regard
to federal civil procedure and pleadings. Accordingly, the Court DIRECTS Plaintiff
to thoroughly read Defendant’s Motion to Dismiss [# 7] and file a response within
two weeks of the entry of this Order. Plaintiff should limit her response only to
issues and matters raised in the Motion to Dismiss. Plaintiff should not include
extraneous documents. If Plaintiff does not file a response, or if that response again
includes materials or evidence outside the Amended Complaint or Motion to
Dismiss, the Court may proceed to evaluate Defendant’s Motion to Dismiss without
a response from Plaintiff.

Signed: January 8, 2018