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Alston v. Town of Brookline

United States District Court, D. Massachusetts

May 8, 2017

GERALD ALSTON, Plaintiff,
v.
TOWN OF BROOKLINE, MASSACHUSETTS; BROOKLINE BOARD OF SELECTMEN; BETSY DEWITT, in her individual and official capacities; KENNETH GOLDSTEIN, in his individual and official capacities; NANCY DALY, in her individual and official capacities; JESSE MERMELL, in her individual and official capacities; NEIL WISHINSKY, in his individual and official capacities; BERNARD GREENE, in his individual and official capacities; BEN FRANCO, in his individual and official capacities; NANCY HELLER, in her individual and official capacities; SANDRA DEBOW, in her individual and official capacities; JOSLIN MURPHY, in her individual and official capacities; and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.

         MEMORANDUM AND ORDER ON DEFENDANTS TOWN OF BROOKLINE, MASSACHUSETTS, BROOKLINE BOARD OF SELECTMEN, BETSY DEWITT, KENNETH GOLDSTEIN, NANCY DALY, JESSE MERMELL, NEIL WISHINSKY, BERNARD GREENE, BEN FRANCO, NANCY HELLER, SANDRA DEBOW, AND JOSLIN MURPHY'S MOTION TO STRIKE (#86) AND ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT (#88).

          M. Page Kelley United States Magistrate Judge

          I. Introduction.

         Plaintiff Gerald Alston brought this action against the Town of Brookline (the Town); the Brookline Board of Selectmen (the Board); various individuals who are either currently or at some point relevant to this action were serving as selectmen on the Board (the Selectmen);[1] the Human Resources Director for the Town, Sandra Debow; Town Counsel, Joslin Murphy; the union of firefighters to which plaintiff belonged, Local 950; and Stanley Spiegel, a Town Meeting member and member of the Town's Advisory Committee, [2] alleging violations of 42 U.S.C. §§ 1981, 1983, and 1985 stemming from an alleged ongoing policy and practice of racial discrimination in Town governance. (#78.) The Town, the Board, the Selectmen, Sandra Debow, and Joslin Murphy (the Town defendants) have moved to strike certain portions of the second amended complaint pursuant to Fed.R.Civ.P. 12(f), to strike portions that fail to comply with Fed.R.Civ.P. 8(a) and 8(d)(1) and with the court's previous order on defendants' motions to dismiss (#86) and, alternatively, pursuant to Fed.R.Civ.P. 12(e), for a more definite statement (#88); Alston has responded in opposition (#96).

          II. Travel of the Case.[3]

The operative pleading in this matter is the third iteration of the complaint, the second amended complaint. (#78.) The original complaint was dismissed voluntarily (#21) and the first amended complaint was dismissed based on the district court's adoption of this court's recommendation. (#75.) The recommendation to dismiss the first amended complaint without prejudice primarily was based on Alston's failure to comport with the pleading requirements of Rule 8, Fed. R. Civ. P.[4] (#72.) The court concluded that the first amended complaint fell “far short of the Rule 8(a) standard in many respects.” (#72 at 28.)

          III. Discussion.

         While the second amended complaint is more succinct than the first and cabins allegations, for the most part, as illicit conduct resulting in harm to Alston, [5] the Town defendants contend that plaintiff has again failed to comply with the pleading requirements of Rule 8 such that portions of the document must be struck or require additional explanation or clarification.

          A. Motion to Strike.

         The Town defendants move to strike paragraphs 19 and 20 (with the exception of the first sentence), 21-23 and 24 (with the exception of the first and last sentences), 25 (with the exception of the first sentence), 26, and 40-69. (#86 at 1.)

         In accordance with Rule 12(f), a party may move to have the court “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Striking portions of a pleading is disfavored.

Courts have ‘considerable discretion' to strike material under Rule 12(f). Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988). However, Rule 12(f) ‘motions are narrow in scope, disfavored in practice, and not calculated readily to invoke the court's discretion.' Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013) (quoting Boreri v. Fiat S.P.A., 763 F.2d 17, 23 (1st Cir. 1985)). That is because ‘striking a portion of a pleading is a drastic remedy and it is often sought by the movant simply as a dilatory or harassing tactic.' Id. (internal quotations omitted). As the moving party, defendants bear the burden of showing that the allegations should be struck under Rule 12(f). Berke v. Presstek, Inc., 188 F.R.D. 179, 180 (D.N.H. 1998).

Carney v. Town of Weare, No. 15-CV-291-LM, 2016 WL 320128, at *2 (D.N.H. Jan. 26, 2016) (footnote omitted); Holloman v. Clarke, No. CV 14-12594-NMG, 2017 WL 1098818, at *1 (D. Mass. Mar. 23, 2017) (“courts may strike pleadings that include inadmissible hearsay or ...


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