United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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.
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.
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). 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).
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).
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).
MOTION TO STRIKE
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).
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.
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.
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).
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.
MOTION TO DISMISS PURSUANT TO FEDERAL RULE 41(B)
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).
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 ...