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Aicher v. Access Corrections

United States District Court, D. New Mexico

August 28, 2017

ERIC AICHER, Plaintiff,
v.
ACCESS CORRECTIONS, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on (1) Plaintiff's Motion to Oppose N.M. Dept. of Correction's[1] from entering into Nos. 2:15-cv-00552 JB/SCY and 1:16-cv-00914 MCA/SMV (Doc. 38); (2) Defendant Access Corrections'[2] 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.

         Having 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. 48).

         I. Plaintiff's Motion to Oppose (Doc. 38)

         On 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.

         I 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.[3] 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.

         Based 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 basis.

         II. Defendant Access Corrections' Motion to Strike (Doc. 40)

         On 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.

         Defendant 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.

         The 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.[4] 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).

         a. Law Governing Motions to Strike

         In 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 act:
(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.

         Fed. R. 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 ...

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