United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on (1) Plaintiff's
Motion to Oppose N.M. Dept. of Correction's from entering
into Nos. 2:15-cv-00552 JB/SCY and 1:16-cv-00914 MCA/SMV
(Doc. 38); (2) Defendant Access
Corrections' Motion to Strike Inappropriate and Untrue
Statements of Plaintiff Concerning Settlement Discussions and
Other Communications of Counsel (Doc. 40); and (3) Defendant
Access Corrections' Motion to Dismiss or, alternatively,
Motion for Summary Judgment (Doc 48). United States District
Court Judge James O. Browning referred this matter to me for
proposed findings and a recommended disposition. Doc. 4.
reviewed the submissions of the parties, the record, and the
relevant law, I recommend that the Court: (1) deny as moot
Plaintiff's Motion to Oppose (Doc. 38); (2) deny
Defendant Access Corrections' Motion to Strike (Doc. 40);
and (3) deny Defendant Access Corrections' Motion to
Dismiss or, alternatively, Motion for Summary Judgment (Doc.
Plaintiff's Motion to Oppose (Doc. 38)
September 1, 2016, Plaintiff filed this motion asking the
Court to “not allow” New Mexico Corrections
Department (NMCD) to “leave” a case he filed in
the Fifth Judicial District Court for the State of New
Mexico, D-506-CV-2015-00672, that names NMCD as a Defendant
and that was removed to federal court on August 11, 2016.
See Aicher v. N.M. Department of Corrections et al.,
1:16-cv-00914 MCA/SMV. As grounds for seeking this relief,
Plaintiff states that his federal claims are against NMCD
employees rather than NMCD as an entity. Id. at 1-2.
Plaintiff also states that he has not filed a federal civil
action against NMCD. Id. It thus appears that the
relief Plaintiff seeks is for his state claims against NMCD
to remain in state court. The remainder of Plaintiff's
motion to oppose refers to settlement discussions between
Plaintiff and NMCD. See id. at 2. On September 16,
2016, NMCD employee Defendant Ewing filed a response to
Plaintiff's motion. Doc. 42.
recommend that the Court deny Plaintiff's motion as moot
for the following reasons. First, shortly after Plaintiff
filed the motion, Plaintiff reached a settlement agreement
with NMCD that led to the dismissal with prejudice of all
claims Plaintiff has raised in this case against NMCD
employees. See Docs. 44, 46 (October 28, 2016 Order
of Dismissal). Second, on September 27, 2016, Chief United
States District Court Judge M. Christina Armijo entered a
Memorandum Opinion and Order of Remand in 16cv914 MCA/SMV
remanding that case to the Fifth Judicial District Court due
to a lack of federal subject matter jurisdiction.
See Doc. 14 (16cv914 MCA/SMV). NMCD was then
dismissed as a party in the state case on the basis of the
settlement reached between Plaintiff and NMCD. See
Order Granting Joint Motion for Dismissal, Aicher v. NM
Department of Corrections et al, No.
D-506-CV-2015-00672, filed Oct. 21, 2016. Furthermore, a
final judgment was issued on May 19, 2017 resolving the state
case in its entirety. See Order Granting Defendant
Access Corrections' Motion for Summary Judgment,
Aicher v. NM Department of Corrections et al, No.
D-506-CV-2015-00672, filed May 19, 2017.
on the settlement between Plaintiff and NMCD as well as the
resolution of the state case, the Court finds that the relief
sought by Plaintiff is moot. I therefore recommend that
Plaintiff's Motion to Oppose (Doc. 38) be denied on this
Defendant Access Corrections' Motion to Strike (Doc.
September 9, 2016, Defendant Access Corrections (hereinafter
“Defendant”) moved to strike two of
Plaintiff's filings in this case: (1) a letter from
Plaintiff to the Court, filed July 14, 2016 (Doc. 29); and
(2) the affidavit of Fred Silva, filed August 15, 2016 (Doc.
34). Doc. 40. Mr. Silva is incarcerated at the same facility
as Plaintiff. See Doc. 34.
argues that the Court should strike Plaintiff's letter
(Doc. 29) because it describes settlement communications
between Plaintiff and defense counsel. Doc. 40 at 1.
Defendant seeks to strike Mr. Silva's affidavit (Doc. 34)
on a similar basis, arguing that it restates settlement
discussions between Plaintiff and defense counsel.
Id. at 2. Defendant further claims that both
Plaintiff's letter and Mr. Silva's affidavit offer
inaccurate representations of the communications and that
Plaintiff is attempting to make defense counsel “a
witness in this case.” Id. at 2-3. Defendant
also indicates that it has advised Plaintiff that counsel for
Defendant will no longer accept his telephone calls and all
future communications will be in writing. Id. at 2.
only authority Defendant cites in support of its motion to
strike is Rule 7(b) of the Federal Rules of Civil Procedure.
Id. at 2. Specifically, Defendant contends that
Plaintiff's letter and Mr. Silva's affidavit must be
stricken because both filings violate Rule 7(b).
Defendant's reliance on Rule 7(b) is misplaced. Rule 7(b)
sets forth the form and general requirements for motions
filed in federal court. See Calderon v. Kan. Dep't of
Soc. & Rehab. Services, 181 F.3d 1180, 1186 (10th
Cir. 1999) (stating that Rule 7(b) “governs the
requirements for all motions and provides that any motion
‘shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth the
relief or order sought.'”) (internal citation
omitted). Rule 7(b) is inapplicable in this case because
Plaintiff's letter and Mr. Silva's affidavit are
plainly not motions or filings seeking a court order for
relief. Rather, it appears that Plaintiff filed both
documents primarily to summarize his alleged communications
with counsel for Defendant. I therefore recommend that the
Court deny Defendant's motion to the extent it seeks
relief under Rule 7(b). That being said, motions to strike
are generally filed in federal court pursuant to Rule 12(f)
of the Federal Rules of Civil Procedure. I therefore next
consider Defendant's motion to strike under Rule 12(f).
Law Governing Motions to Strike
Daye v. Cmty. Fin. Serv. Centers, LLC, 233 F.Supp.3d
946, 987-89 (D.N.M. Jan. 20, 2017) (Browning, J.), the Court
set forth the relevant law governing motions to strike:
Rule 12(f) of the Federal Rules of Civil Procedures provides:
(f) Motion to Strike. The court may strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days
after being served with the pleading.
Civ. P. 12(f). Professors Charles Wright and Arthur Miller
have recognized, however, that such motions are not favored
and, generally, should be denied:
The district court possesses considerable discretion in
disposing of a Rule 12(f) motion to strike redundant,
impertinent, immaterial, or scandalous matter. However,
because federal judges have made it clear, in numerous
opinions they have rendered in many substantive contexts,
that Rule 12(f) motions to strike on any of these grounds are
not favored, often being considered purely cosmetic or
“time wasters, ” there appears to be general
judicial agreement, as reflected in the extensive case law on
the subject, that they should be denied unless the challenged
allegations have no possible relation or logical connection
to the subject matter of the controversy ….
5C C. Wright & A. Miller, Federal Practice &
Procedure § 1382, at 433-36 (3d. ed. 2004) (footnotes
omitted). Accord Burget v. Capital W. Sec., Inc.,
2009 WL 4807619, at *1 (W.D. Okla. December 8, 2009)
(Miles-LaGrange, C.J.) (citing Scherer v. U.S. Dep't
of Educ., 78 Fed.Appx. 687, 689 (10th Cir. 2003)
(unpublished)) (“While motions to strike are generally