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DeSoto v. McKay

United States District Court, D. Arizona

December 5, 2016

Marta DeSoto, Plaintiff,
v.
Gregory McKay, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court are: (1) Defendant Gregory McKay's Motion to Strike and Motion to Dismiss Plaintiff's First Amended Complaint (“FAC”), (Doc. 23); (2) Plaintiff Marta DeSoto's Response to Defendant's Motion to Strike and Motion to Dismiss, (Doc. 24); and (3) Defendant's Reply to Plaintiff's Response to [Defendant's] Motion to Dismiss, (Doc. 25). The Court now rules on the Motions.

         I. BACKGROUND

         From 2009 to 2015, Plaintiff was employed on an independent contractor basis by the Arizona Department of Child Safety (“DCS”) and, DCS's predecessor agency, Child Protective Services (“CPS”). (Doc. 21 at ¶ 4; Doc. 24 at 4 n.3). Plaintiff was originally hired as a clinical and forensic neuropsychologist, and in 2015, she was appointed as the Unit Consultant for DCS's Glendale field office. (Doc. 21 at ¶ 4). In late 2015, following her response to a DCS request for proposal, Plaintiff accepted DCS's offer to provide various psychological evaluation services for its clients. (Id.). Plaintiff's contract-at-issue commenced on January 1, 2016. (Id.).

         In February 2016, KNXV, a local television station, reported about Plaintiff's marriage to Jacob Wideman. (Id. at ¶ 16). In 2004, Plaintiff treated Mr. Wideman while she was a psychology associate employed by the Arizona Department of Corrections and Mr. Wideman was a prisoner. (Id. at ¶¶ 6, 7).[1] In May 2010, Plaintiff became engaged to Mr. Wideman and married him sometime thereafter. (Id. at ¶¶ 9, 14). As part of KNXV's report, the television station provided DCS with documentation relating to Plaintiff's marriage. (Id. at ¶ 15).

         Following the KNXV report, DCS terminated Plaintiff's contract effective February 11, 2016 and informed Plaintiff that the “termination was done in the best interest of the State.” (Id. at ¶ 16). Plaintiff alleges that DCS Director Gregory McKay had direct personal participation in terminating Plaintiff's contract. (Id.). Prior to the termination, Plaintiff “never received any complaints about her job performance.” (Id. at ¶ 4).

         Plaintiff alleges that Defendant McKay, while acting in his individual capacity, deprived Plaintiff of her “First Amendment Right of Intimate Association and Fourteenth Amendment Liberty Interest in [the] Right to Marry and Right of Privacy” in violation of 42 U.S.C. § 1983 (2012). (Id. at 8).[2]

         II. MOTION TO STRIKE

         Defendant argues that, pursuant to Federal Rule of Civil Procedure (“Federal Rule”) 12(f), the Court should strike “from 1:23-3:4, as well as [paragraphs] 10-12 and []14 of the ‘Factual Allegations' section of” Plaintiff's FAC. (Doc. 23 at 7).

         A. Legal Standard

         Federal Rule 12(f) provides that this Court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” While the determination to strike is in the discretion of the trial court, a motion to strike “should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991); see Yount v. Regent Univ., Inc., No. CV-08-8011-PCT-DGC, 2009 WL 995596, at *11 (D. Ariz. Apr. 14, 2009) (“[E]ven a properly made motion to strike is a drastic remedy which is disfavored by the courts and infrequently granted.” (quoting Int'l Longshoremen's Ass'n, S.S. Clerks Local 1624 v. Va. Int'l Terminals, 904 F.Supp. 500, 504 (E.D. Va. 1995))).

         The defendant bears the burden of persuading this Court that the relevant paragraphs and lines should be stricken. XY Skin Care & Cosmetics, LLC v. Hugo Boss USA, Inc., No. CV-08-1467-PHX-ROS, 2009 WL 2382998, at *1 (D. Ariz. Aug. 4, 2009). The defendant must show (1) that the material is redundant, immaterial, impertinent, or scandalous or that the requested relief is unavailable and (2) how such material will cause prejudice. Id.; see also Am. Buying Ins. Servs., Inc. v. S. Kornreich & Sons, Inc., 944 F.Supp. 240, 249-50 (S.D.N.Y. 1996) (noting that motions to strike have frequently been denied “when no prejudice could result from the challenged allegations, even though the matter literally is within the categories set forth in [Federal] Rule 12(f)” (quotations omitted)). Any doubt regarding the redundancy, immateriality, impertinence, scandalousness, or insufficiency of a pleading must be decided in favor of the non-movant. XY Skin Care, 2009 WL 2382998, at *1.

         B. Analysis

         Defendant argues that portions of pages 1-3 as well as paragraphs 10-12 and 14 of Plaintiff's FAC are immaterial and impertinent. (Doc. 23 at 4-7). Defendant alleges that pages 1-3 contain “immaterial case law citations and legal argument” while the specified paragraphs contain “nothing but immaterial and impertinent administrative matters.” (Id. at 5-6). In response, Plaintiff argues that the specified portions of her FAC provide pertinent background information, and Defendant has not shown he will suffer any prejudice if the Court denies his Motion to Strike. (Doc. 24 at 2-6).

         “‘Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (2d ed. 1990)), rev'd on other grounds, 510 U.S. 517 (1994). “‘Impertinent' matter consists of statements that do not pertain, and are not necessary, to the issue in question.” Id. (quoting Wright & Miller § 1382, at 711). At this early stage in this proceeding, the Court cannot say that the claims contained in paragraphs 10-12 and 14 have no bearing on the subject matter of the litigation. It is possible that complaints made to the Arizona Board of Psychologist Examiners could have some relevance to Plaintiff's claims. On the other hand, Plaintiff's nearly three-page legal argument involving marital rights is immaterial and does not belong in a complaint. However, Defendant has not shown-and has not argued-that these legal arguments and case citations are so prejudicial that they should be stricken pursuant to Federal Rule 12(f). See Vesecky v. Matthews (Mill Towne Ctr.) Real Estate, LLC, No. CV-09-1741-PHX-JAT, 2010 WL 749636, at *2 (D. Ariz. Mar. 2, 2010) (declining to grant a defendant's motion to strike because of the defendant's failure to demonstrate prejudice). Thus, the Court denies Defendant's Motion to Strike.

         III. MOTION TO DISMISS PURSUANT TO FEDERAL RULE 41(B)

         Defendant moves to dismiss this action pursuant to Federal Rule 41(b) on grounds that paragraphs 4, 6-9, 14, and 18-19 of Plaintiff's FAC do not comply with Federal Rules 8(a)(2), 8(d)(1), and 10(b).

         Dismissal under Federal Rule 41(b) is “a sanction to be imposed only in extreme circumstances.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). Therefore, a court considering a Federal Rule 41(b) motion to dismiss must consider five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Neither party addresses these factors. Although the Court recognizes Defendant's argument that Plaintiff did not follow some of the Federal Rules in drafting her FAC, the Court finds that Plaintiff's noncompliance has not significantly interfered with ...


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