Biggs v. City of St. Paul et al

Filing 58

Opinion and Order: Defendants motion to strike is DENIED as to Kochs Amended Complaint, and DENIED as moot as to Biggs Complaint. Signed on 3/8/2019 by Magistrate Judge Mustafa T. Kasubhai. Associated Cases: 6:18-cv-00506-MK, 6:18-cv-00507-MK (plb)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

LORRIE BIGGS,

Case No.: 6:18-cv-506-MK
Plaintiff,

OPINION and ORDER

v.
CITY OF ST. PAUL, an Oregon
Municipal Corporation; KIMBALL
WALLIS, an Individual; and LAURA
SCHROEDER, an Individual,
Defendants.
LEE KOCH,

Case No.: 6:18-cv-507-MK
Plaintiff,

v.
CITY OF ST. PAUL, an Oregon
Municipal Corporation; KIMBALL
WALLIS, an Individual; and LAURA
SCHROEDER, an Individual,
Defendants.

1 – OPINION AND ORDER

OPINION and ORDER

KASUBHAI, Magistrate Judge:
Plaintiff Lee Koch and Plaintiff Lorrie Biggs (together, Plaintiffs) filed independent
actions alleging violations of 42 U.S.C. § 1983 against their former employer, Defendant City of
St. Paul, Oregon (“City”), and Kimball Wallis and Laura Schroeder (together, Defendants),
alleging violations of the First Amendment of the United States Constitution, and various
violations of state law whistleblower and common law claims. Defendants also moved to strike
certain allegations from the pleadings pursuant to Federal Rule of Civil Procedure 12(f)(2)
(“Rule 12(f)(2)”). Because the Court recommended dismissing Biggs’ Amended Complaint in a
separate Findings and Recommendation, Defendants’ motion to strike is DENIED without
prejudice as moot as to Biggs. As to Koch, Defendants’ motion to strike is DENIED without
prejudice to raise privilege issues at a later stage of the litigation.
Standard of Review
Rule 12(f) of the Federal Rules of Civil Procedure permits a district court to “strike from
a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous
matter.” Fed. R. Civ. P. 12(f). Rule 12(f) serves to help “avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those issues prior to
trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993, rev’d on other grounds by Fogerty
v. Fantasy, Inc., 510 U.S. 517 (1994)). However, motions to strike are generally disfavored and
infrequently granted. Legal Aid Servs of Or. V. Legal Servs. Corp., 561 F. Supp. 2d 1187, 1189
(D. Or. 2008). “A motion to strike should not be granted unless it is clear that the matter to be
stricken could have no possible bearing on the subject matter of the litigation.” Contreras, ex rel
Contreras v. County of Glen, 725 F. Supp. 2d 1157, 1159 (E.D. Cal. 2010) (quoting Bassett v.

2 – OPINION AND ORDER

Ruggles et al., 2009 WL 2982895 at *24 (E.D.Cal. Sept. 14, 2009). Motions to strike pleadings
are non-dispositive and may be ruled upon by a magistrate judge by order. E.g., Agan v.
Katzman & Korr, P.A., 328 F.Supp.2d 1363, 1365 n. 1 (S.D. Fla. 2004).
A.

Relevant Procedural History

In response to Plaintiffs’ initial complaints, Schroeder filed Rule 12(f) motions to strike.1
On September 4, 2018, after Plaintiffs were ordered to file amended complaints, those motions to
strike were denied as moot and without prejudice.2 To the extent Defendants attempt to revive
and reincorporate the motions and briefing filed in response to Plaintiffs’ initial complaints and
denied as moot, the Court does not consider these. See Local Rule 7-1(b) (“Motions may not be
combined with any response, reply, or other pleading.”).
B.

Analysis

Defendants argue that the Plaintiffs’ Amended Complaints contain numerous statements
that are subject to the attorney-client privilege and which should, therefore, be stricken pursuant
to Rule 12(f)(2). Defendants argue that Plaintiffs do not have the authority to disclose protected
communications between Schroeder and Plaintiffs, or between Schroeder and other City
employees or officials. Plaintiffs argue that: (1) Schroeder does not have standing to assert
attorney-client privilege on behalf of City; (2) attorney-client privilege does not apply to
communications made in furtherance of committing a crime, tort, or fraud, and the facts alleged
show that City used its attorney to commit a tort; (3) statements regarding allegations of overbilling or that are related to excessive or unauthorized attorney fees are not privileged

1
2

Koch v. City of St. Paul, 6:18-cv-507, ECF 12; Biggs v. City of St. Paul, 6:18-cv-506, ECF 12.
Koch v. City of St. Paul, 6:18-cv-507, ECF 40; Biggs v. City of St. Paul, 6:18-cv-506, ECF 38.

3 – OPINION AND ORDER

communications; and (4) statements made by Schroeder while acting in a human resources or
employee management, or investigator capacity are not subject to the privilege.
The attorney-client privilege applies where legal advice of any kind is sought from an
attorney acting in her professional capacity as a legal advisor and the communications relating to
that purpose are made in confidence with the client insisting on permanent protection from
disclosure. Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977). Communications made by an
entity’s employees to the entity’s counsel (acting as the entity counsel) at the direction of
superiors in order to secure legal advice from counsel are protected. See Upjohn Co. v. United
States, 449 U.S. 383 (1981). The privilege is strictly construed. United States v. Martin, 278
F.3d 988, 999 (9th Cir. 2002). Courts employ an eight-part test to determine whether
information is protected by the privilege:
(1) Where legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client, (6) are at
his instance permanently protected (7) from disclosure by himself
or by the legal adviser, (8) unless the protection be waived.
United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). Communications that enable or aid
the client to commit a tort or crime, regardless of the attorney’s good faith, are not protected. In
re Heuwetter, 584 F. Supp. 119, 127 (S.D.N.Y. 1984). Likewise, communications that trigger
retaliatory conduct are excepted from the privilege. See Becker v. Willamette Cmty. Bank, 2014
WL 2949334, at *2 (D. Or. June 30, 2014) (application of the privilege would prohibit plaintiff
from pursuing a retaliation claim because she would be completely barred from proving the
conduct or speech that allegedly triggered the retaliation).
This Court assumes that an attorney may assert the privilege of confidentiality on behalf
of her client. See Or. Rev. State. § 40.225(3); United States v. Judson, 322 F.2d 460, 467 (9th

4 – OPINION AND ORDER

Cir. 1963). Regardless, in the motion now pending before this court, all Defendants, including
the privilege holder, City, appear to be asserting the privilege. This Court also assumes that
statements regarding attorney fees and billing are not privileged unless the statements included
privileged information beyond the general nature of the work, time spent, amount billed, and fee
arrangement. See Clarke v. American Commerce Nat. Bank, 974 F.2d 127 (9th Cir. 1992).
Because this Court has recommended that certain claims in Koch’s Amended Complaint
should survive Defendants’ motion to dismiss, while other should not survive, the Court has
carefully reviewed surviving claims to determine whether the claims relied upon any attorneyclient privileged communications. The Court finds that the following alleged communications
do not fall under the attorney-client privilege because they either suggest tortious retaliatory
conduct, or are not legal advice:


Schroeder told Koch staff were not allowed in executive meetings, ECF 42. ¶
8(mm)3;



Schroeder demanded Koch turn over the official audio recording from a City
Council meeting. ECF 42, ¶ 7(s);



Wallis sent an e-mail stating that Schroeder had “instructed” that Koch was no
longer allowed to sit at council table during Council meetings. ECF 42, ¶8(zz);



Wallis stated that Schroeder had advised against giving staff reviews due to
pending discrimination litigation. ECF 42, ¶ 8(ggg);

The Court declines, at this time, to review any remaining communications that may be
subject to the attorney-client privilege.

3

Koch v. City of St. Paul, 6:18-cv-507

5 – OPINION AND ORDER

CONCLUSION
For the reasons stated above, Defendants’ motion to strike is DENIED as to
Koch’s Amended Complaint, and DENIED as moot as to Biggs’ Complaint.

DATED this 8th of March 2019.

s/Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge

6 – OPINION AND ORDER