United States District Court, W.D. Arkansas, Fayetteville Division
MICHELLE WARNER, individually and on behalf of all others similarly situated PLAINTIFF
v.
LITTLE JOHN TRANSPORTATION SERVICES, INC., et al. DEFENDANTS
OPINION AND ORDER
P.K.
HOLMES, III, U.S. DISTRICT JUDGE
Before
the Court is Defendants' Federal Rule of Civil Procedure
12(f) motion (Doc. 21) to strike paragraph 50(f) from
Plaintiff's complaint. Plaintiff has filed a response
(Doc. 26). Defendants ask the Court to strike a portion of
the complaint because it includes information that Defendants
argue is confidential and protected from disclosure pursuant
to a nondisclosure agreement that binds Plaintiff. The motion
will be denied.
This is
an action for back wages due for uncompensated overtime. The
portion of the complaint at issue on this motion reads:
Upon information, among other edicts related to working after
hours, below are examples of instructional flyers and emails
from the Defendants instructing Agents to the following
issues concerning time worked or working from their own
person[al] cellular phones, for which the Agent is
responsible and for which the agent pays: . . .
F. From November 4, 2016 email entitled “No
ZEROS”:
“Make contact for next week too before your
customers go home. Let them know you are here if they need
you.
Remember we booked about 50, 000 last Saturday If your
phone rings on a Saturday hang it in them.”
(Doc. 1, ¶ 50) (italics in original).
A
complaint is a pleading. Fed.R.Civ.P. 7(1)(1). “The
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). This is “an extreme
and disfavored measure.” BJC Health Sys. v.
Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007).
Several cases define the Rule 12(f) categories. See
Steven S. Gensler, Federal Rules of Civil Procedure, Rules
and Commentary, Rule 12, Practice Commentary, p. 332 n.245
(2019) (collecting cases defining terms).
Defendants
do not explicitly argue which of these categories-redundancy,
immateriality, impertinence, or scandal-justifies the Court
striking paragraph 50(f) from the complaint. Rather, their
argument seems to be that the information alleged is
confidential, violates the terms of a nondisclosure
agreement, is not “central” to Plaintiff's
claims, and is unnecessary because it provides more than the
minimal factual allegation necessary to state a claim under
Rule 8. Considered under any Rule 12(f) category,
Defendants' arguments do not persuade the Court that Rule
12(f) relief is appropriate.
“‘Redundant'
matter consists of allegations that constitute a needless
repetition of other averments in the pleading.” 5C
Wright & Miller, Fed. Prac. & Proc. Civ. § 1382
(3d ed.). Defendants' argument is less that paragraph
50(f) is redundant and more that it is cumulative. Cumulative
presentation of fact may result in exclusion at trial,
see Fed. R. Evid. 403, but provides no basis for
striking factual allegations from pleadings under Rule 12(f).
Moreover, matter is not stricken for redundancy “in the
absence of a clear showing of prejudice to the movant.”
5C Wright & Miller, Fed. Prac. & Proc. Civ. §
1382 (3d ed.). Defendants have made no clear showing that
disclosure of information is actually, or even likely,
prejudicial, even if the Court agrees with their argument
that the information is confidential and covered by a
nondisclosure agreement.
“An
allegation is immaterial if it has no value in developing the
issues of the case.” Blake v. Batmasian, 318
F.R.D. 698, 700 n.2 (S.D. Fla. 2017) (citing Oaks v. City
of Fairhope, Alabama, 515 F.Supp. 1004, 1032 (S.D. Ala.
1981)). Plaintiff claims she is due backpay for uncompensated
overtime. Paragraph 50(f) alleges that Defendants sent out an
email on November 4, 2016 (a Friday) encouraging employees to
make contact with customers before customers go home, and
further makes allegations from which it can be inferred that
Defendants expected employees to answer calls from customers
on Saturdays. Read in the context of other allegations,
whether or not Defendants asked Plaintiff to work at the end
of the workweek and on weekends is likely to be not only
relevant but material to her claims that she worked
uncompensated overtime hours. Taken as true, the allegation
in paragraph 50(f) is not immaterial to issues in this case.
“‘[I]mpertinent'
matter consists of statements that do not pertain, and are
not necessary, to the issues in question.” 5C Wright
& Miller, Fed. Prac. & Proc. Civ. § 1382 (3d
ed.). Understood in this context, asking whether a matter
pertains to issues in question is the same as asking whether
it is relevant. Under the Federal Rules of Civil Procedure
“relevance” is broadly construed. Cf.
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (“The key phrase in this definition [of the
general scope of discovery in Federal Rule of Civil Procedure
26]-‘relevant to the subject matter involved in the
pending action'-has been construed broadly to encompass
any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be
in the case.”). A matter is impertinent if it is
irrelevant. Defendants rightly choose not to argue that the
information alleged in paragraph 50(f) of the complaint would
be irrelevant to Plaintiff's overtime claims.
“A
matter is scandalous if it is both grossly disgraceful (or
defamatory) and irrelevant to the action or defense.”
Blake, 318 F.R.D. at 700 n.4 (citing Black's Law
Dictionary). “It is not enough that the matter offends
the sensibilities of the objecting party if the challenged
allegations describe acts or events that are relevant to the
action.” 5C Wright & Miller, Fed. Prac. & Proc.
Civ. § 1382 (3d ed.). Defendants' argument that the
information alleged is confidential and including it in a
complaint violates a nondisclosure agreement might fall under
this category if the information alleged is irrelevant to the
action or defense. Taking paragraph 50(f) as a whole, this is
not the case. With respect to the number disclosed in the
phrase “booked about 50, 000 last Saturday, ” it
might be sufficiently confidential that the harm caused by
its disclosure is akin to harm caused by defamatory or
grossly disgraceful allegations. It might also be the case
that the number booked is irrelevant. Because Defendants
provide no reason that disclosure of this number harms them,
however, Defendants fail to meet their burden of persuasion
on this issue. With respect to the phrase “hang it in
them, ” the connotation of this idiomatic ...