US INVESTIGATIONS SERVICES, LLC v. CALLIHAN et al
Filing
52
MEMORANDUM OPINION AND ORDER granting 45 Plaintiff's Motion to Strike Insufficient Affirmative Defense. Defendant's Eighth Affirmative Defense, specifically Paragraphs 130, 131, 132, 133, 134, 135 and 136, is hereby STRICKEN. Signed by Judge Terrence F. McVerry on 05/11/2011. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
US INVESTIGATIONS SERVICES, LLC,
Plaintiff,
v.
SUSAN CALLIHAN and
SARAH LEAANN BAUCOM,
Defendants.
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2: 11-cv-0355
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court for disposition is MOTION TO STRIKE INSUFFICIENT
AFFIRMATIVE DEFENSE, with brief in support, filed by Plaintiff, US Investigations Services,
LLC (“USIS”) (Document Nos. 45 and 46), the MEMORANDUM OF LAW IN RESPONSE TO
PLAINTIFF’S MOTION TO STRIKE INSUFFICIENT AFFIRMATIVE DEFENSE filed by
Defendant, Susan Callihan (Document No. 47), and the REPLY MEMORANDUM OF LAW
filed by USIS (Document No. 50). For the reasons that follow, the Motion to Strike will be
granted.
Standard of Review
Federal Rule of Civil Procedure 12(f) authorizes courts to “strike from a pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). The purpose of a motion to strike is to clean up the pleadings, streamline
litigation, and avoid unnecessary forays into immaterial matters that will not have any possible
bearing on the outcome of the litigation. “Immaterial matter is that which has no essential or
important relationship to the claim for relief.” Del. Health Care Inc. v. MCD Holding Co., 893 F.
Supp. 1279, 1291–92 (D. Del. 1995). “Impertinent matter consists of statements that do not
pertain, and are not necessary, to the issues in question.” Id. A “scandalous” matter or pleading
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is one that casts a derogatory light on someone, uses repulsive language, or detracts from the
dignity of the court. Carone v. Whalen, 121 F.R.D. 231, 232 (M.D. Pa. 1988).
As a general matter, motions to strike under Rule 12(f) are disfavored. Seidel v. Lee, 954
F. Supp. 810, 812 (D. Del. 1996). “[E]ven where the challenged material is redundant,
immaterial, impertinent, or scandalous, a motion to strike should not be granted unless the
presence of the surplusage will prejudice the adverse party.” Symbol Techs., Inc. v. Aruba
Networks, Inc., 609 F. Supp.2d 353, 359 (D. Del. 2009). Moreover, when ruling on a motion to
strike, “the [c]ourt must construe all facts in favor of the nonmoving party and deny the motion if
the defense is sufficient under law.” Procter & Gamble Co. v. Nabisco Brands, Inc., 697 F.
Supp. 1360, 1362 (D. Del. 1988). A court should not strike a defense unless the insufficiency is
“clearly apparent.” Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir. 1986), rev’d in
part on other grounds, 505 U.S. 504 (1992).
Discussion
Plaintiff initiated this lawsuit on March 18, 2011, by the filing of an eight-count Verified
Complaint against Defendants Susan Callihan, Sarah LeeAnn Baucom, and Sharon Vernick. 1
The gravamen of Plaintiff’s allegations is that Defendants, all former employees of USIS “have
caused sensitive, proprietary and restricted information and proposal information of USIS to be
purloined from USIS’ computers and servers and, on information and belief, to be disclosed to
and possibly be used by direct competitors of USIS . . . .” Amended Verified Complaint at 2.
Defendant Callihan, through counsel, has admitted that she emailed herself on her last
day of work and that the email contained several attachments. It is Defendant’s position that she
did not violate any agreements or breach any contracts or confidences as a result of that email.
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On March 29, 2011, Plaintiff filed an Amended Verified Complaint in which it did not name
Sharon Vernick as a defendant and, thus, did not bring any claims against her.
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On April 12, 2011, Defendant Calihan filed an Answer and Affirmative Defenses to
Plaintiff’s Amended Complaint (Document No. 43).2 In her Eighth Affirmative Defense,
Defendant raises fraud as a defense to the claims asserted against her. Specifically, Defendant
asserts that, “USIS along with NT Concepts, Inc. engaged in a scheme and artifice to defraud the
United States Government, the Office of Personnel Management, and other small companies
bidding on the [Consolidated Leads Contract.]” Eighth Affirmative Defense, ¶ 132.
Plaintiff contends, inter alia, that Defendant’s Eighth Affirmative Defense should be
stricken as it is not a defense to any claims asserted against her and, thus, the defense constitutes
immaterial, impertinent and scandalous matters.3 Defendant responds that her “defense of fraud
is related directly to the conduct of USIS during its bidding and decision making processes on
the Consolidated Leads contract.” Response at 10.
After a careful review of the Amended Verified Complaint and the Answer and
Affirmative Defenses filed by Callahan, the Court finds that the Eighth Affirmative Defense
asserted by Defendant should be stricken. USIS has sued Defendant for breach of her
obligations owed to USIS under a confidentiality agreement, as well as her duties owed to USIS
as her employer. See Amended Verified Complaint at ¶ 1-29, 51-63, 89-98. The fraudulent
conduct that Defendant alleges USIS engaged in is simply not related to her alleged
misappropriation of USIS’s documents and sensitive information. Accordingly, the Court finds
that the allegations contained in the Eighth Affirmative Defense are immaterial as they have no
essential or important relationship to the claims for relief and are impertinent as they contain
statements that do not pertain, and are not necessary, to the issues in question. Therefore, the
2
To date, Defendant Baucom has not filed an Answer.
3
Because the Court finds this issue to be dispositive, it is not necessary for the Court to reach
the additional arguments raised by Plaintiff.
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Court will strike Defendant’s Eighth Affirmative Defense, paragraphs 130, 131, 132, 133, 134,
135 and 136.
Conclusion
For the reasons hereinabove stated, the Motion to Strike filed by Plaintiff will be granted.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
US INVESTIGATIONS SERVICES, LLC,
Plaintiff,
v.
SUSAN CALLIHAN and
SARAH LEAANN BAUCOM,
Defendants.
)
)
)
)
)
)
)
)
)
2: 11-cv-0355
ORDER OF COURT
AND NOW, this 11th day of May, 2011, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED AND DECREED that the Motion to Strike
filed by Plaintiff is GRANTED. Defendant’s Eighth Affirmative Defense, specifically
Paragraphs 130, 131, 132, 133, 134, 135 and 136, is STRICKEN as immaterial, impertinent, and
scandalous pursuant to Federal Rule of Civil Procedure 12(f).
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
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cc:
Mark A. Willard, Esquire
Eckert, Seamans, Cherin & Mellott
Email: mwillard@eckertseamans.com
Audrey K. Kwak, Esquire
Eckert, Seamans, Cherin & Mellott
Email: akwak@eckertseamans.com
Robert V. Campedel, Esquire
Eckert, Seamans, Cherin & Mellott, LLC
Email: rcampedel@eckertseamans.com
Ryan J. Siciliano, Esquire
Eckert, Seamans, Cherin & Mellott
Email: rsiciliano@eckertseamans.com
Alexander H. Lindsay , Jr., Esquire
Lindsay, Jackson & Martin
Email: Michele@lindsaylawfirm.com
Robert Varsek, Esquire
Rosen, Rosen & Bloom
Email: robertvarsek@yahoo.com
Charles T. Rosen, Esquire
Rosen, Rosen, Bloom & Varsek
Email: rrb@csonline.net
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