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United States District Court, S.D. New York

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

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 there appears to be diversity of citizenship among the parties. (See, e.g., Compl. ¶¶ 47-48.) Accordingly, there is no need for Plaintiff to amend the jurisdictional allegations in the Complaint.

  Nevertheless, the Court recommends that Plaintiff's civil rights claims, brought pursuant to 42 U.S.C. § 1983, 1985, and 1986, be dismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B),*fn1 because they are both frivolous and fail to state a claim for relief. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833 (1989) ("the statute [ 28 U.S.C. § 1915 (d)] accords judges . . . the authority to dismiss a claim based on an indisputably meritless legal theory"). In order to state a claim for deprivation of civil rights, a Plaintiff must be challenging the actions of state officials or actions taken under color of state law. See 42 U.S.C. § 1983; Richardson v. Knight. 521 U.S. 399, 403, 117 S.Ct. 2100, 2103 (1997); Adickes v. S.H. Kress & Co., 398 U.S. 144, 166, 90 S.Ct. 1598, 1613 (1970); Hayut v. State Univ. of New York, 352 F.3d 733, 744 (2d Cir. 2003); Lucas v. Novogratz, No. 01 Civ. 5445 (GEL), 2002 WL 31844913, at *3 (S.D.N.Y. Dec. 18, 2002). There is no allegation in the Complaint, nor could there be, that any of the Defendants are either "state actors" or were "acting under color of state law." The only named Defendants are corporations and employees of those corporations. Their alleged fraudulent or deceptive business practices in relation to Plaintiff's purchase of a car in no way implicates state action.*fn2 Nor has Plaintiff alleged any facts to support a claim of conspiracy between Defendants and state actors to violate Plaintiff's civil rights. The only conspiracy alleged is one among the various Nissan employees to deceive Plaintiff. (See, e.g., Compl. ¶¶ 51-53.) Indeed, in the Complaint's claim for relief, Plaintiff seeks a declaratory judgment "affirming that defendants did act under color of state law and deliberately, maliciously, and conspiratorially violated plaintiff's civil rights when they knowingly committed fraudulent actions, and engaged in Deceptive Business Practices. . . ." (Compl. Section VII ¶ I.)*fn3

  Accordingly, this Court recommends that Plaintiff's civil rights claims be dismissed pursuant to 28 U.S.C. § 1915 (e)(2) (B)

  3. Verbosity and Lack of Clarity

  Defendants contend that the Complaint is unduly verbose, contains irrelevant factual information, and is unclear as to what legal theories are being pursued. As a corollary of this argument, Defendants contend that each of the numbered paragraphs in the Complaint contains multiple allegations. Finally, Defendants argue that many of the exhibits to the Complaint are not clearly marked and are irrelevant to Plaintiff's claims.

  The Complaint is lengthy and does contain a wealth of factual detail setting forth Plaintiff's complaints about her automobile and her efforts to get Defendants to rectify what is alleged to be deceptive and fraudulent business practices. Nevertheless, without passing judgment on their substance, the factual allegations are chronological and comprehensible. The Court therefore finds no basis to require Plaintiff to amend the factual allegations. However, there are some clearly irrelevant, inflammatory factual matters in the Complaint, with corresponding exhibits, relating to Plaintiff's interaction with the Attorney General's Office, the Better Business Bureau, the Department of Motor Vehicles, and the police, in addition to her hospitalization and psychiatric issues. They are irrelevant to Plaintiff's claims against Defendants and there is no meaningful way in which Defendants can respond to them in their Answer. It is therefore appropriate to strike this material from the Complaint. See Rule 12(f), Fed.R.Civ.P. ("the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter"); Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976) ("it is settled that the [Rule 12(f)] motion will be denied, unless it can be shown that no evidence in support of the allegation would be admissible"); In re Merrill Lynch & Co., Inc. Research Reports Sees. Litig., 218 F.R.D. 76, 78 (S.D.N.Y. 2003) ("Second Circuit law makes it clear that references to preliminary steps in litigations and administrative proceedings that did not result in an adjudication on the merits . . . are, as a matter of law, immaterial under Rule 12(f) of the Federal Rules of Civil Procedure.").

  Accordingly, the following paragraphs and exhibits to the Complaint shall be stricken: Paragraphs 25, 26, 27, 29 through 44; Exhibits 9, 10, 10A, 10B, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22A, B, and C, and 23.

  Plaintiff's articulation of her legal claims is far less coherent than her factual allegations. Nevertheless, the thrust of the claims, which implicate each of the Defendants, individually and collectively, is that they engaged in, and conspired to commit, deceptive business practices in violation of, inter alia. 15 U.S.C. § 45; violated the Truth-in-Lending Act; violated the New York Business Law, Section 349; and committed consumer fraud, all in relation to charging Plaintiff for various items related to her car which she did not request or receive, and in entering into a "sub-prime predatory loan" with respect to the financing of Plaintiff's automobile. "Although not a model of clarity or brevity, the Complaint is not so muddled or indefinite as to deny defendants meaningful notice of many of plaintiff's claims." Foreman v. Goord, No. 02 Civ. 7089 (SAS), 2004 WL 385114, at *5 (S.D.N.Y. Mar. 2, 2004). Plaintiff's failure to clearly articulate the legal theories on which she is proceeding against each Defendant does not distinguish her Complaint from most pro se complaints, and there is no reasonable likelihood that requiring her to file an amended complaint will remedy the situation. See Wynder, 360 F.3d at 80 ("Rule 8 does not necessarily require . . . that the complaint separate out claims against individual defendants"). The most efficient way to clarify any confusion arising from the Complaint is to depose Plaintiff.

  Finally, as discussed, many of the exhibits attached to the Complaint have been stricken. If Defendants are unable to discern the correct labeling of any of the remaining exhibits, the originals of the exhibits are in the court file and are clearly marked.


  For the reasons set forth above, Defendants' motion to strike portions of the Complaint is granted. The following paragraphs and exhibits shall be stricken: Paragraphs 25, 26, 27, 29 through 44; Exhibits 9, 10, 10A, 10B, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22A, B, and C, and 23. Defendants' motion is denied in all other respects.

  Further, the Court recommends that Plaintiff's civil rights claims, brought pursuant to 42 U.S.C. § 1983, 1985, and 1986 be dismissed with prejudice.*fn4

  Pursuant to 28 U.S.C. § 636 (b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten days from service of this Report to file written objections. See also Fed.R.Civ.P. 6(a) and (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Lewis A. Kaplan, U.S.D.J., and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 149-52, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied. 513 U.S. 822, 115 S.Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied. 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

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