UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANE DOE,

Plaintiff,

v. Case No. 1:20-cv-3553

UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION*

Plaintiff Jane Doe is a former employee of the Federal Bureau of Investigation. She

alleges that her supervisor (Defendant John Smith)1 engaged in a variety of sexual and criminal

misconduct towards her. The FBI eventually terminated Doe for lying to investigators about the

nature of her relationship with Defendant Smith. She now sues Attorney General Garland (as

head of the FBI’s parent agency), alleging that the Bureau discriminated against her on the basis

of sex, race, religion, national origin, and ethnicity. She also sues Smith individually, alleging

that he committed common law assault, battery, and intentional infliction of emotional distress.

Defendants move to dismiss and for a more definite statement. Having reviewed the pleadings,

the briefing, and the law, the Court will grant their motions.

Doe failed to timely exhaust some of her Title VII claims, so those claims must be

dismissed. Doe’s tort claims against Defendant Smith must also be dismissed because the Court

does not have supplemental jurisdiction or diversity jurisdiction to resolve them. The Federal

* The Memorandum Opinion was issued under seal on September 26, 2022. This version contains redactions of confidential information. 1 Given the sensitive nature of the allegations here, the Court granted the parties leave to proceed anonymously. See Order, ECF No. 2. Defendants move for a more definite statement of Doe’s remaining claims and she does not

object, so the Court will order a new pleading.

I.

Jane Doe is an woman who lives in , a community with

the Third Amend.

Compl. (TAC) ¶¶ 18, 19, ECF No. 65. After serving honorably in the Army National Guard,

Doe took a job at the FBI’s as a ,

working to “restore trust between law enforcement and . . .

communities.” Id. ¶ 24, 43.

Smith became the of the shortly after Doe arrived. Id. ¶

50. Starting in late-2012, Smith allegedly “began to single out [Doe] by calling her into his

office and demanding [she] attend certain meetings with him.” Id. ¶ 52. His conduct then

escalated. Smith allegedly intervened in Doe’s divorce proceedings, required Doe to disclose

intimate details of her life, demanded access to her personal electronic devices, and threatened

her about reporting his misconduct. Id. ¶ 55–58. Smith also threatened to spread lascivious

falsehoods in Doe’s conservative community because impugning her honor could endanger her

reputation and safety. Id. ¶ 63. And he allegedly repeatedly sexually assaulted her. See id. ¶¶

61, 64, 65, 68.

Smith also referred Doe and her ex-husband to the Office of the Inspector General (OIG)

for an investigation into her distressed real estate sale, prompting a multi-year investigation. Id.

¶ 69. In September 2018, the FBI’s Office of Professional Responsibility (OPR) recommended

terminating Doe “for allegedly participating in a conspiracy to commit mortgage fraud” and for

“lack of candor regarding: (a) certain mortgage documents regarding short sales of properties;

2 (b) the extent of her involvement in a short sale; (c) whether she received cash from the short

sale of a property on an unrelated matter; and (d) her relationship with [Smith].” Id. ¶ 79. The

FBI’s Departmental Review Board (DRB) disagreed with OPR’s findings on the mortgage fraud

but affirmed its determination that Doe had lied about her relationship with Smith. Id. ¶ 83.

DRB therefore upheld her termination, which became final in January 2020. Id. ¶¶ 83, 86.

Smith left the to be a Special Agent in the FBI’s Field Office. Id. ¶

72. While in he allegedly continued to coerce Doe to “proceed forward with the

relationship.” Id. ¶ 73. He insisted that Doe visit him in to “support[] him through the

bar exam,” and during that visit allegedly raped her. Id. ¶ 124. Doe says the harassment, threats,

and controlling behavior persisted until as late as July 2020 when her counsel sent him a cease-

and-desist letter. Id. ¶ 134.

Doe contacted the FBI’s Equal Employment Office (EEO) on March 12, 2018, see Fed.

Def.’s Mot., Ex. A (June 5, 2018 Report of Counseling) at 3, ECF No. 75-2, and later filed a

formal EEO complaint alleging that she had faced a hostile work environment, sexual

harassment, and reprisal based on Smith’s conduct from , see id., Ex. B (May 13,

2018 EEO Complaint) at 1. She also claimed that the FBI discriminated against her based on

race, national origin, sex, parental status, and for prior EEO activity when it suspended her at

OPR’s recommendation. See id. at 4. The EEO accepted Doe’s claims related to her suspension

but found the remaining claims untimely. See id., Ex. C (Nov. 2018 EEO Letter).2 Doe

contacted the EEO again on March 4, 2020, see id., Ex. D (May 7, 2020 Report of Counseling),

and eventually filed a formal complaint arguing that the DRB discriminated against her in

2 The Court may take judicial notice of “administrative orders and administrative complaints without converting the motion into one for summary judgment.” Vasser v. McDonald,

, 9–10 (D.D.C. 2016).

3 upholding her termination, see

Ex. E (April 2020 EEO Complaint). The EEO accepted that

claim as well. See

Ex. F (June 11, 2020 Letter).

Doe filed this lawsuit before receiving a final administrative decision on her EEO claims.

See Compl., ECF No. 1-3. The Court has since liberally granted Doe leave to amend her

pleadings. See Minute Order (May 6, 2021); see also ECF No. 61. In this Third Amended

Complaint, she sues Attorney General Merrick Garland and Defendant Smith. See TAC ¶ 1.

Three of eight claims run against the Attorney General: (1) Title VII disparate-treatment, TAC ¶¶

140–45; (2) Title VII retaliation,

¶¶ 146–48; and (3) Title VII disparate-impact,

¶¶ 149–53.

The remaining five run against Smith in his individual capacity: (4) a Fourth Amendment

constitutional-tort claim under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics,

(1971), TAC ¶¶ 154–59; (5) a Fifth Amendment Bivens claim,

¶¶

160–67; (6) a civil battery claim,

¶¶ 168–172; (7) a civil assault claim,

¶ 173–76; and (8)

an intentional infliction of emotional distress claim,

¶¶ 177–83.

The United States is substituted as a defendant to Doe’s tort claims when “they are

supported by the conduct certified by the Attorney General’s designee” as falling within the

scope of Smith’s employment. Order on Westfall Cert., ECF No. 68.

The Attorney General and the United States (collectively, Federal Defendants) move to

dismiss under Federal Rules 12(b)(1) and 12(b)(6), as well as for a more definite statement under

Rule 12(e). See Fed. Def.’s Mot., ECF No. 75. They argue Doe exhausted no Title VII claims

except for those accepted by the EEO; that she failed to state a disparate-impact claim; and that

her tort claims must be dismissed when they run against the United States. Smith also moved to

dismiss. See Smith’s Mot., ECF No. 71. He makes thirteen motions on a variety of state and

federal grounds seeking to dismiss all of Doe’s claims against him. See

at 2–8. Doe

4 submitted a combined opposition but voluntarily dismissed both Bivens claims, her Title VII

disparate-impact claim, and any tort claims against the United States. See Opp’n 4–5, ECF No.

78. The motions are now ripe for resolution.

II.

A complaint must contain “a short and plain statement of the grounds for the court’s

jurisdiction,” as well as a “statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(1), (2). A defendant may move to dismiss for failure to satisfy either of

these requirements. See id. 12(b)(1), (6).

When a defendant moves to dismiss for lack of subject matter jurisdiction, the Court must

presume that “a cause lies outside [its] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co.

of Am.,

(1994), and the plaintiff bears the burden of overcoming that

presumption, see Lujan v. Defs. of Wildlife,

(1992). While the Court accepts

factual allegations in the complaint as true, those allegations “will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”

Nepal v. U.S. Dep’t of State, --- F. Supp. 3d ---,

at *3 (D.D.C. May 12, 2022).

And the Court “may consider materials outside the pleadings in deciding whether to grant a

motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharma., Inc. v. FDA,

(D.C. Cir. 2005).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient

factual allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly,

(2007). A complaint must raise “more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

(2009).

Pleading facts that are “merely consistent with” a defendant’s liability “stops short of the line

5 between possibility and plausibility.” Twombly, 550 U.S. at 545–46. In evaluating a motion to

dismiss, legal conclusions or “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements” are not afforded the presumption of truth. Iqbal,

. The Court is limited to “the facts alleged in the complaint, any documents either

attached to or incorporated in the complaint and matters of which [the court] may take judicial

notice.” Hurd v. District of Columbia,

(D.C. Cir. 2017).

III.

Start with Doe’s Title VII disparate-treatment claims against the Attorney General. The

Federal Defendants argue Doe has not adequately exhausted most of those claims. The Court

agrees.3

A.

Federal employees asserting Title VII claims must “initiate contact with [an EEO]

Counselor within 45 days of the . . . matter alleged to be discriminatory.”

(a)(1). The Supreme Court teaches that “[e]ach discrete discriminatory act starts a

new clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan,

(2002). That means “discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.”

Doe first contacted an EEO counselor on March 12, 2018, so any claims accruing before

January 26, 2018, are facially time-barred. She recognizes as much but asks the Court to excuse

her failure to exhaust under equitable tolling or equitable estoppel. See TAC ¶¶ 34–42.

In “Title VII cases, equitable tolling . . . can occur in several circumstances.” Bowden v.

United States,

(D.C. Cir. 1997). Courts apply tolling where a pro se claimant

3 The Court has federal question jurisdiction over Title VII claims. See

.

6 makes “diligent but technically defective efforts to act within a limitations period,”

(citing

Irwin v. Dep’t of Vet’ns Affs.,

, 95–96 (1990)); where the claimant was “misled about

the running of a limitations period,”

(citing the same); or where a claimant “neither knew nor

had reason to know about the limit,”

(citing Bayer v. Dep’t of Treasury,

(D.C. Cir. 1992)).

The doctrine of equitable estoppel is different. To invoke estoppel, a claimant must show

(1) the party asserting a limitations defense made a “definite representation” to the claimant; (2)

the claimant “relied on its adversary’s conduct in such a manner as to change [her] position for

the worse”; and (3) the claimant’s “reliance was reasonable.” Morris Comms., Inc. v. FCC,

(D.C. Cir. 2009). But “equitable estoppel will not lie against the Government as it

lies against private litigants.” Off. of Pers. Mgmt. v. Richmond,

, 419 (1990)

(leaving unresolved whether estoppel ever applies against federal agencies).

To estop the Government, a claimant must also show an official engaged in “affirmative

misconduct” beyond mere negligence. Morris,

. And it must “manifestly appear

that the agent was acting within the scope of his authority, and was empowered, in his capacity

of agent, to make the declaration or representation which is relied on as the ground of relief.”

Lee v. Munroe,

(1813). Were it otherwise, courts would indirectly vest “lower-

ranking government officials and employees [with] power to bind the government.” 33 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 8354 (2d ed.).

Doe uses “tolling” and “estoppel” interchangeably, see Opp’n 8–9, but her factual

allegations appear to invoke equitable estoppel. She does not allege that the FBI (or its agents)

“misled [her] about the running of a limitations period,” Irwin, 498 U.S. at 95–96; or that she

“neither knew nor had reason to know about the limit,” Bayer,

; or that she made

7 “diligent but technically defective efforts” to exhaust her administrative remedies, Irwin, 498

U.S. at 95–96. Instead, she says the 45-day exhaustion requirement should not apply “due to the

duress and threats to Plaintiff by Defendant Smith.” TAC ¶ 34; see 51 Am. Jur. 2d Limitation of

Actions § 366 (noting “estoppel by duress requires a showing of continuous threats and abuse

during the limitation period”). She alleges Smith told her “something bad would happen” and

“threatened to have her children taken away, threatened her family and friends, and threatened

her if she were to talk to anyone.” Id. ¶ 35.

Perhaps that conduct might warrant estopping Smith from asserting a limitations defense.

But the Court cannot attribute Smith’s misconduct to the Government without a showing that he

acted “within the scope of [his official] authority.” Richmond, 496 U.S. at 419–20; see also

Munroe,

. Generally, an agent’s conduct is attributable to his employer only if: (1)

it is “the kind he is employed to perform”; (2) it occurs “within the authorized time and space

limits”; and (3) it is “actuated, at least in part, by a purpose to serve [his] master.” Restatement

2d of Agency § 228 (1958); see also Jacobs v. Vrobel,

(D.C. Cir. 2013)

(invoking this definition).

Applying that standard here, Doe has not alleged that Smith was acting within the scope

of his authority in threatening her. Doe says Smith threatened violence if she reported his sexual

harassment and misconduct. See TAC ¶ 34. But, not surprisingly, nothing in the Complaint

supports an inference Smith was “employed to” make that kind of representation; nor is there

any indication Smith’s aim in threatening Doe was to “serve” the FBI or its mission. So there is

no basis to attribute Smith’s misconduct to the Government. See Restatement 2d of Agency

§ 228, cmt. b (1958) (“Proof that the actor was in the general employment of the master does not

of itself create an inference that a given act done by him was within the scope of employment”);

8 cf. Council on Am. Islamic Rels. v. Ballenger,

(D.C. Cir. 2006) (holding a

congressman acted within the scope of his employment when he allegedly defamed an individual

during a press call because “speaking to the press during regular work hours . . . falls within the

scope of a congressman’s authorized duties”).

Doe appears to agree. Her Opposition stridently argues that Smith “was acting as an

individual” when he committed “the common law torts.” Opp’n at 4 n.2. But one of those tort

claims is that Smith committed civil assault when he “threatened to kill [Doe] and harm her

family if she spoke to anyone about” his alleged sexual misconduct. TAC ¶ 174. Doe has thus

effectively waived any argument that Smith’s threats are attributable to the Government—for

estoppel purposes or otherwise.

The Circuit has been clear: “estoppel’s application to the Government should be rigid and

sparing.” ATC Petroleum, Inc. v. Sanders,

(D.C. Cir. 1988). Without a

more substantial showing that Smith’s threats fell within his authority, the Court will not estop

the Government from asserting Title VII’s 45-day exhaustion requirement. Doe’s disparate-

treatment claims accruing before January 26, 2018, will be dismissed as untimely.4

B.

The Federal Defendants ask the Court to order a more definite statement as to Doe’s

remaining Title VII disparate-treatment claims about her termination from the FBI. See Fed.

Def.’s Mot. at 28–29; see also Fed. R. Civ. P. 12(e) (authorizing parties to “move for a more

4 Doe argues that a jury must decide whether she is entitled to equitable estoppel. See Opp’n at 11. That is because “the key issue for equitable estoppel is whether Defendant Smith’s threats to kill Plaintiff and her family are credible and whether this reasonably excused her from filing in a timely manner.”

Not so. Even if the Court assumes Smith’s threats were credible, that Doe’s reliance on them was reasonable, and that she pursued her rights diligently, her allegations do not support attributing Smith’s threats to the Government. The Court’s holding does not depend on resolving those disputed issues of fact.

9 definite statement of a pleading . . . which is so vague or ambiguous that the party cannot

reasonably prepare a response”). Doe has voluntarily dismissed three counts in her Complaint

and the Court will dismiss another three counts (the common law torts). See Part III, infra. It is

therefore appropriate for Doe to file a new, detailed complaint alleging those facts necessary to

support her remaining claims. Because Doe “does not object,” Opp’n at 25, the Court will order

a more definite statement.

IV.

Now for Doe’s claims against Smith. The parties mainly dispute whether Doe’s tort

claims are timely under applicable state-law limitations periods. But the Court may not reach

those arguments because it does not have supplemental or diversity jurisdiction to resolve them.

See Athens Cmty. Hosp., Inc. v. Schweiker,

, 992 (D.C. Cir. 1982) (“It is axiomatic

that subject matter jurisdiction may not be waived, and that courts may raise the issue sua

sponte.”).

A.

When a court has original jurisdiction over a plaintiff’s claims, it may also exercise

supplemental jurisdiction over “all other claims that are so related to claims in the action within

such original jurisdiction that they form part of the same case or controversy.”

(a). State and federal claims are “related” where they “derive from a common nucleus of

operative fact.” United Mine Workers of Am. v. Gibbs,

(1966). So, for

example, it is appropriate to exercise supplemental jurisdiction where “the same acts violate

parallel federal and state laws” or where “the facts necessary to prove a violation of one are

practically the same as those needed to prove a violation of the other.” Lindsay v. Gov’t Emps.

Ins. Co.,

(D.C. Cir. 2006) (citations omitted).

10 Even if the “common nucleus” test is satisfied, a district court “may decline to exercise

supplemental jurisdiction” in some cases.

(c); see also Gibbs,

(“It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of

plaintiff’s right.”). Courts may decline supplemental jurisdiction if: (1) the “claim raises a novel

or complex issue of State law”; (2) the state-law claim “substantially predominates over” the

original-jurisdiction claim; (3) the district court “has dismissed all claims over which it has

original jurisdiction”; or (4) there are other “compelling reasons for declining jurisdiction.”

(c)(1)–(4).

Here, there is no supplemental jurisdiction over Doe’s tort claims because they do not

derive from a “common nucleus of operative fact” with her federal claims. Gibbs,

.

To start, there is no legal overlap between the elements necessary to prove Doe’s tort and

Title VII claims. A prima facie Title VII disparate-treatment claim requires a plaintiff to show

that her “employer intentionally treats some people less favorably than others because of their

race, color, religion, sex, or national origin.” Figueroa v. Pompeo,

(D.C.

Cir. 2019).

The state law claims are quite different. Assault requires the plaintiff to demonstrate that

the defendant acted “intending to cause a harmful or offensive contact” or “an imminent

apprehension of such a contact,” and that the plaintiff was “thereby put in such imminent

apprehension.” Restatement 2d of Torts § 21 (1965). Battery requires a plaintiff to show that

the defendant acted “intending to cause a harmful or offensive contact” with the plaintiff and

“harmful contact with the person of the other directly or indirectly results.” Id. § 13. As for

intentional infliction of emotional distress, a plaintiff must prove that the defendant engaged in

11 “extreme and outrageous conduct” that “intentionally or recklessly causes severe emotional

distress.” Id. § 46. Given these differences, it is not as if “the facts necessary to prove a

violation of one are practically the same as those needed to prove a violation of the other.”

Lindsay,

.

Likewise, there is almost no factual overlap between the conduct supporting Doe’s Title

VII and tort claims.

Doe’s remaining exhausted Title VII claims concern the FBI’s decision to terminate her

and the DRB’s subsequent decision upholding her termination. See TAC ¶ 141. In contrast,

Doe’s common law tort claims assert that Smith engaged in a variety of misconduct unrelated to

the OIG/DRB process. She says Smith committed battery by isolating her, threatening her, and

sexually assaulting her. TAC ¶¶ 169–71. She claims the same actions prove assault. Id. ¶ 174.

And her IIED claims allege that Smith engaged in “extreme and outrageous conduct” while

“acting in his individual capacity.” Id. ¶¶ 178, 179.

The only potential factual overlap here is that Smith allegedly referred Doe to OIG for

investigation. To be sure, Doe alleges that the FBI terminated her to “cover up” Smith’s sexual

misconduct, id. ¶ 141, but the Court need not blindly accept that kind of conclusory allegation of

illicit purpose, see Olaniyi v. District of Columbia,

(D.D.C. 2011) (noting

“conclusory allegations are not entitled to an assumption of truth”). That is particularly true

when, as here, there are “more likely explanations” for the FBI’s conduct. Ashcroft v. Iqbal,

(2009). Doe herself acknowledges that “OIG investigators [] determined she

lacked candor related to her relationship with Defendant Smith, and she was removed from the

rolls of the FBI.” TAC ¶ 85. But even if the Court accepted as true that the FBI terminated Doe

12 to cover up Smith’s misconduct, that fact would only be relevant to her Title VII claim; it would

not support her tort claims. This is a thin reed connecting the two.

There is thus a significant difference between the legal and factual grounds supporting

Doe’s claims. Cf., e.g., Chelsea Condo. Unit Owners Ass’n v. 1815 A. St., Condo. Grp., LLC,

, 138–39 (D.D.C. 2007) (finding no supplemental jurisdiction over state law

claims alleging misrepresentations during marketing of condominiums where federal law claims

alleged conflict of interest during the same sale). That difference is particularly stark given cases

in which state and federal claims were “related” for purposes of § 1367(a). Cf., e.g., Women

Prisoners of D.C. Dep’t of Corr. v. District of Columbia,

(D.C. Cir. 1996)

(finding a common nucleus of operative facts where state and federal claims both arose from the

District’s alleged failure to provide for the needs of female prisoners); Lindsay, 448 F.43d at 424

(finding two classes of claims were related where “members of both classes performed the same

type of work for the same employer and were deprived of overtime compensation as a result of

the same action taken by their employer”); LaShawn v. Barry,

(D.C. Cir.

1996) (finding a common nucleus of operative facts where state and federal claims arose from

the District's allegedly deficient foster care system).

Given the fundamental differences between Doe’s Title VII claims and her tort claims,

she would not “ordinarily be expected to try them all in one judicial proceeding.” Gibbs,

. By extension, original jurisdiction over the former does not confer supplemental

jurisdiction over the latter.

But that is not the only problem Doe faces. Even if her state and federal claims were

sufficiently related, the Court would still decline to exercise supplemental jurisdiction because

her state claims “substantially predominate” over her federal claims.

(c)(2).

13 As the D.C. Circuit has noted, courts routinely “decline[] to exercise pendent jurisdiction

over related state claims when the only substantial federal claim ar[ises] under Title VII.”

Bouchet v. Nat’l Urb. League, Inc.,

(D.C. Cir. 1984) (Scalia, J.) (collecting

cases). That is because there is “a great discrepancy between the relatively limited equitable

relief under Title VII (reinstatement and back pay) and the much broader relief sought under . . .

state causes of action (full compensatory and punitive damages).”

That holds true here—

Doe’s tort claims are far more substantial in terms of the “scope of the issues raised” and “the

comprehensiveness of the remedy sought.” Gibbs, 383 U.S. at 726–27. Her tort allegations

involve conduct occurring over several years in at least two states, various liability and

credibility witnesses, and more than $60 million in damages claims against Smith. Those claims

“would be pendent to this Title VII litigation much as a dog is pendent to its tail.” Bouchet,

.

In sum, the Court does not have supplemental jurisdiction over Doe’s state tort claims

and would decline to exercise that jurisdiction if it existed.

B.

The Court also does not have diversity jurisdiction over Doe’s tort claims. District courts

have original jurisdiction “of all civil actions where the matter in controversy exceeds the sum or

value of $75,000” and the suit is between “citizens of different states.”

(a),

(a)(1). Doe seeks well over $75,000 in damages, so the amount in controversy requirement is

easily satisfied. Her complaint also alleges that Smith is “a resident of the State of Florida,”

TAC ¶ 8, but “an allegation of residence alone is insufficient to establish the citizenship

necessary for diversity jurisdiction.” Naartex Consulting Corp. v. Watt,

, 792 n. 20

(D.C. Cir. 1983); see also Steigleder v. McQuesten,

(1905) (noting residence

14 and citizenship are “wholly different things” for diversity jurisdiction). Her pleadings therefore

do not support diversity jurisdiction. And she never suggests otherwise.

V.

In sum, Doe failed to timely exhaust any Title VII claims accruing before January 26,

2018. She is not entitled to equitable estoppel or tolling of Title VII’s 45-day exhaustion

requirement, so those claims will be dismissed for failure to state a claim. The Court does not

have supplemental or diversity jurisdiction over Doe’s tort claims against Defendant Smith, so

those claims will be dismissed without prejudice for lack of jurisdiction. The Federal

Defendants request a more definite statement of Doe’s remaining Title VII claims (and she does

not object), so the Court will order her to file a new, streamlined complaint.5

2022.10.25 15:56:20 -04'00' Dated: September 26, 2022 TREVOR N. McFADDEN, U.S.D.J.

5 Smith also moved to strike “scandalous or impertinent matter” from the filings. That motion will be denied. This is not one of the rare circumstances when such a motion is warranted, especially given that both parties are proceeding pseudonymously here.

15