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LEWIS v. NISSAN NORTH AMERICA

June 8, 2004.

REGINA LEWIS, Plaintiff, -against- NISSAN NORTH AMERICA, INC., CORP., et al., Defendants


The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge

MEMORANDUM OPINION AND ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Regina Lewis, proceeding pro se, brings this action against Defendants Nissan North America, Inc., Corp., Newburgh Nissan Car Dealership (collectively "Nissan"), and various employees of Nissan, claiming that she was misled in a variety of ways with regard to the purchase of a Nissan automobile. Defendants have moved, pursuant to Fed.R.Civ.P. 12(e), to require Plaintiff to file an amended complaint which complies with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure, and pursuant to Rule 12(f), to strike those portions of the Complaint which incorporate by reference various documents. The action was referred to this Court for general pretrial supervision and reports and recommendations on dispositive motions, in accordance with 28 U.S.C. § 636(b)(1)(A), (B), and (C).

For the following reasons, Defendants' motion is granted in part and denied in part. DISCUSSION

  Plaintiff's Complaint is twenty-seven pages in length, contains forty-six paragraphs of factual allegations, and various legal claims which, construed liberally, allege fraud, violation of the Truth-in-Lending Act, deceptive business practices, violation of the New York Business Law, unlawful incarceration, and violation of Plaintiff's civil rights. In addition, there are twenty-three exhibits attached to the Complaint. In essence, the Complaint alleges that Plaintiff was improperly charged for items and warranties related to her vehicle which she either did not request or did not receive. Plaintiff made many complaints to Defendants and the New York State Attorney General's Office and various other governmental agencies, was charged with Aggravated Harassment, was the subject of a restraining order, was arrested, and was committed for a brief period of time to the Middletown Psychiatric Center, where she was diagnosed with "major depression with psychotic features." (Compl. Ex. 12.) Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages.

  Defendants contend that the Complaint is defective because (1) the exhibits to the Complaint are not clearly marked and numbered; (2) the legal and jurisdictional bases of the Complaint are unclear because, although Plaintiff cites to 42 U.S.C. § 1983, 1985, and 1986, for violation of her civil rights and conspiratorial conduct under color of state law, all of the Defendants are private, non-governmental actors; (3) the factual portion of the Complaint contains oppressive detail, improper factual evidence, and multiple allegations in individual paragraphs; and (4) Plaintiff asserts a "laundry list" of legal theories, without making clear which claims pertain to which Defendants. (See Affidavit of John F. Moore, Esq., dated April 16, 2004 ("Moore Aff."), and Memorandum of Law in Support of Motion Pursuant to Fed.R.Civ.P. 12(e) and 12(f) ("Defs.' Mem.").)

 I. Applicable Legal Principles

  Rule 8 provides in relevant part that a complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . .[and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8 (a). The Rule further provides that [e]ach averment of a pleading shall be simple, concise, and direct." Fed.R.Civ.P. 8(e)(1). The Federal Rules also require that "[a]11 averments of a claim . . . shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances." Fed.R.Civ.P. 10(b).

  As the Second Circuit has observed:
The statement should be plain because the principal function of the pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial. The statement should be short because unnecessary 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) (internal quotation marks and citations omitted), see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). "The key to Rule 8(a)'s requirements is whether adequate notice is given." Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004). "Factual allegations alone are what matters," and the failure to cite a statute, or the correct statute, particularly where a party is proceeding pro se, is not a proper basis for dismissing a complaint. Id. at 77 (quotation marks and citations omitted); see also D'Agostino v. Sarivola, No. 00 Civ. 3056 (MP), 2001 WL 761063, at *2 (S.D.N.Y. July 5, 2001).

  While all litigants, including those proceeding pro se, are bound by the Federal Rules, it is now axiomatic that pro se complaints are to be construed liberally and courts are to apply more flexible standards in determining their sufficiency. See Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 176 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596 (1972) (per curiam); Lerman v. Bd. of Elections in the City of New York. 232 F.3d 135, 140 (2d Cir. 2000).

 
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. Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.
Salahuddin, 861 F.2d at 42.

 II. Application to Plaintiff's Complaint

  1. Numbering of Paragraphs

  Defendants contend that the first three sections of the Complaint, identifying the parties, the basis for the Court's jurisdiction, and the basis of venue, violate Rule 10(b), Fed.R. Civ. P., because they are unnumbered. Although Rule 10(b) requires numbered paragraphs for "all averments of claim or defense," this defect in the Complaint is purely one of form, does not impede Defendants' ability to respond to the Complaint, and results in no other discernible prejudice to Defendants. Accordingly, the Court will not require Plaintiff to amend the Complaint in order to satisfy this objection.

  2. Jurisdictional Bases

  Defendants next contend that the Jurisdictional and legal basis of the Complaint is unclear insofar as it asserts jurisdiction on the basis of 42 U.S.C. § 1983, 1985, and 1986, for the deprivation of Plaintiff's civil rights, despite the fact that none of the Defendants are governmental actors, nor were they acting under color of state law. This objection, although valid, goes to the merits of the Complaint, not to its adequacy as a pleading. Plaintiff has also asserted jurisdiction on the basis of 28 U.S.C. § 1331, 1332, and 1343. The first two of these jurisdictional bases are facially applicable to the allegations of the Complaint, since Plaintiff has claimed violations of various federal statutes, such as the Truth-in-Lending Act, and ...


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