KITT v. THE CITY OF PITTSBURGH et al

Filing 72

ORDER denying 43 Motion for Discovery; denying 43 Motion for Hearing; denying 43 Motion to Disqualify; and denying 58 MOTION to Strike City Defendants' Sur Reply to Plaintiff's Motion to Permit Discovery, Schedule a Hearing and Dis qualify the City of Pittsburgh Department of Law filed by ROBYN M. KITT, and giving notice as to 70 Motion to Dismiss that the Court shall treat it as a Motion under Rule 56 as more fully specified in the Order. Signed by Judge Nora Barry Fischer on 12/29/2015. (msp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBYN M. KITT, INDIVIDUALLY AND
AS PARENT AND NATURAL GUARDIAN
OF J.R., A MINOR,
Plaintiff,
v.
THE CITY OF PITTSBURGH, ET AL.
Defendants.

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Civil Action No. 15-225
Judge Nora Barry Fischer

MEMORANDUM ORDER
In this civil action, Plaintiff, Robyn M. Kitt, attempts to assert various claims connected
to an investigation of a bank robbery, and her related arrest, trial, and acquittal. Presently
pending before the Court are several motions: 1) Defendants’ Motion to Dismiss Second
Amended Complaint (Docket No. [70]), which is based in part on a release that Plaintiff
executed in Kitt v. City of Pittsburgh, Civil Action No. 14-65 (W.D.Pa.)(the "Release"); 2)
Plaintiff’s Motion to Strike City Defendants' Sur-Reply (Docket No. [58]); and 3) Plaintiff’s
Motion to Permit Discovery, Schedule a Hearing and Disqualify the City of Pittsburgh
Department of Law (Docket No. [43]).
Plaintiff moves to strike the sur-reply for failing to comply with the Court’s Order on
Motions Practice (Docket [23]) regarding the page length for sur-replies. Plaintiff’s motion will
be denied, however, Defendants are admonished that future filings will be stricken for
noncompliance with page limits absent prior leave and that the Court may take such action sua
sponte.
Plaintiff's motion for discovery, as well her request for a related hearing and the

disqualification of counsel, also will be denied.

Plaintiff seeks information regarding the

negotiation, approval, and execution of the Release, and contends that Defendants somehow
have waived their attorney-client privilege by raising the Release as a bar to this action. "[I]n
any matter of contract interpretation, the language of the agreement itself provides us with the
primary, as well as the initial, touchstone in formulating our interpretation." Erie Telecomms,
Inc. v. Erie, 853 F.2d 1084, 1100 (3d Cir. 1988). It is axiomatic that the plain language of the
contract governs. Beyond a general assertion, Plaintiff's motion does not indicate how any
circumstances surrounding the negotiation or execution of the Release, or any facts extraneous to
the language of the Release itself, are relevant to the issues to be decided on Defendants’ motion.
Moreover, there is no suggestion, under the circumstances, that Defendants have placed at issue
the advice or understanding of its attorneys. Accordingly, Plaintiff is not entitled to the relief
requested.
Defendants’ motion to dismiss relies, in part, on the Release not attached to the Amended
Complaint. Therefore, the Motion is properly considered under Federal Rule of Civil Procedure
12(d) as one for summary judgment as to that issue.
AND NOW, this 29th day of December, 2015, it is hereby ORDERED, ADJUDGED, and
DECREED that Plaintiff's Motions to Strike and for Discovery [43] [58] are DENIED. Further,
the parties hereby are advised that Defendants' Motion to Dismiss [70], to the extent that it is
based on the Release, will be considered pursuant to Fed. R. Civ. P. 12(d) and 56.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record