United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Kenneth Jenkins filed this lawsuit alleging, inter
alia, that Defendants discriminated against him and/or
retaliated against him in violation of federal and state law.
Plaintiff's FIRST AMENDED COMPLAINT (“FAC”)
(Doc. No. 3) provides the factual basis for these claims. But
the FAC also contains certain distasteful statements by
Plaintiff that Defendants contest. On August 16, 2019,
Defendants moved to strike those statements and an exhibit
from the FAC on the grounds that they are immaterial,
impertinent, and scandalous under Federal Rule of Civil
Procedure 12(f). The Motion is fully briefed. For the following
reasons, the Court will grant in part and deny in part
underlying dispute arose out of Plaintiff's employment
with the City of Las Vegas, New Mexico. Plaintiff, an
African-American male, was employed as a deputy-police chief
during the period relevant to this lawsuit. FAC at 2. During
his employment, Plaintiff claims to have been outspoken about
the “inadequacy of the [police department's]
budget.” Id. at 4. Plaintiff asserts that
because of this “whistleblowing” or
alternatively, because of his race, Defendants denied him
advancement to positions he was qualified to hold.
Id. Accordingly, Plaintiff brought the current
action against Defendants.
24, 2019, Plaintiff filed his FAC. Id. at 1. Shortly
thereafter, Defendants moved to strike three of the
statements contained in the FAC. Mot. at 2. For convenience
and consistency, the Court sets forth the contested
statements in their entirety below.
first contest FAC Paragraph 11, which states:
Mayor Tonita Gurule-Giron took office in April of 2016.
(On June 27, 2019, agents for the New Mexico Attorney
General's Office raided her Las Vegas, New Mexico, home
to search for evidence of bid-rigging, bribery, kickbacks or
other crimes. She is also now being investigated for voter
fraud and elections tampering that date back to
FAC at 3, ¶ 11 (emphasis in original).
Defendants challenge FAC Paragraph 25:
In their response to Mr. Jenkins Charge of
Discrimination, Defendants Gurule-Giron and Trujillo filed
sworn affidavits with the EEOC alleging versions of what was
said by Mr. Jenkins during meetings they had with him.
Unknown to Gurule-Giron and Trujillo, Mr. Jenkins recorded
those meetings and therefore has proof that the affidavits
they filed with the EEOC, a federal agency, were patently
false and therefore perjurious and will ultimately result in
their criminal prosecution. These false affidavits confirm
the Defendants' illegal intent to discriminate and
retaliate against Mr. Jenkins, for which all of the
Defendants will be held to account for their joint and
Id. at 6, ¶ 25 (emphasis in original).
Defendants dispute the inclusion of FAC Paragraph 26:
On or about December of 2017, Mr. Jenkins and then
Chief of Police Juan Montano met with Thad Porch, Special
Auditor for the New Mexico State Auditor's Office, to
report Mayor Gurule-Giron's suspicious attempt to
get the City to award her
construction-company-owner boyfriend, Marvin Salazar, an
“emergency” contractor's bid in the
approximate amount of $96, 000.00 to replace the carpet and
wood-flooring at City Hall, which bid reeked of
corruption, as there was no “emergency, ”
the bid was patently excessive and Salazar was the
Mayor's boyfriend. As a result of this
investigation, the bid of the Mayor's boyfriend was
ultimately rejected. It was this bid-rigging
conspiracy with her boyfriend that led to law
enforcement's raid on her home on June 27, 2019. See
Search Warrant attached hereto as Exhibit A.
(Mr. Jenkins later also complained to Mr. Porch about the
City's [including the involvement of the Mayor] illegal
alteration of Mr. Jenkins' time sheets and failure to
compensate him for his documented overtime.)
Id. at ¶ 26 (emphases and brackets in
also challenge the inclusion of Exhibit A attached to the
FAC. Doc. No. 3-1. Exhibit A is a copy of a search warrant
issued for Defendant Gurule-Giron's residence.
Id. at 2.
Rule of Civil Procedure (“Rule”) 8(a) describes
the requirements of a pleading. Specifically, “[a]
pleading . . . must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). For those pleadings that
go beyond the parameters established in Rule 8, Rule 12(f)
provides that “[t]he court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f) (emphasis added). While courts generally
disfavor motions to strike, see Sundance Servs., Inc. v.