United States District Court, N.D. New York
A.J. Bosman, Esq., Bosman Law Firm, L.L.C., Rome, New York, for Plaintiff.
Shannon T. O'Connor, Esq., Assistant Corporation Counsel, Mary Anne Doherty, Esq., Corporation Counsel of the City of Syracuse, Syracuse, New York, for Defendants.
MEMORANDUM DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Defendants move (Dkt. No. 39) pursuant to Rule 12(f) of the Federal Rules of Civil Procedure to strike allegations in plaintiff's second amended complaint (Dkt. No. 39). Plaintiff opposes defendants' motion. (Dkt. No. 42).
In a Memorandum-Decision and Order entered on March 27, 2013 (Dkt. No. 36), the Court granted defendants' motion to give preclusive effect to the issues of the initiation of the criminal prosecution against plaintiff and pornography, which were litigated in Dotson v. City of Syracuse; The City of Syracuse Police Department; Former Chief of Police Dennis Duval; Sgt. Timothy Gay; Mark McCardle; Patrick Harrington; Michael Rathbun, 5:04-CV-1388 (NAM/ATB) ("Dotson I"). Plaintiff's second amended complaint, however, refers to pornography in the workplace five times. See Dkt. No. 39, ¶¶ 28(a), 31, 33, 51 and 63.
Rule 12(f) of the Federal Rules of Civil Procedure states, in relevant part: "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The Second Circuit has cautioned that a motion to strike should not be granted "unless there is a strong reason for so doing." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976). A court must deny any motion made pursuant to Rule 12(f) on the ground that the matter in the Complaint is impertinent and immaterial "unless it can be shown that no evidence in support of the allegation would be admissible." Id. (citations omitted). To prevail on a motion to strike, a defendant must show, among other things, that allowing the challenged allegations to stand would result in prejudice to the defendant. Roe v. City of New York, 151 F.Supp.2d 495, 510 (S.D.N.Y. 2001). Thus, "courts should not tamper with the pleadings unless there is a strong reason for so doing." Lipsky, 551 F.2d at 893.
The Court grants defendants' motion to strike all references to pornography from the second amended complaint. The Court previously granted defendants' motion to preclude plaintiff from raising the issue of pornography in the workplace. Dkt. No. 36, p.16. No evidence in support of the allegation of pornography in the workplace will be admissible in this case. Allowing any allegation regarding pornography in the workplace to stand would greatly prejudice defendants, who litigated this issue exhaustively in Dotson I.
Accordingly, it is hereby
ORDERED that defendants' motion to strike (Dkt. No. 40) is GRANTED and the references to pornography, in paragraphs 28(a), 31, 33, 51 and 63 are stricken from the second amended complaint. A third amended complaint need not be filed; and it is further
ORDERED that this matter is returned to United States Magistrate Judge Andrew T. Baxter for ...