UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James J. Carney Tracy Carney

v. Civil No. 15-cv-291-LM Opinion No.

Town of Weare, et al

O R D E R

James J. Carney and Tracy Carney bring suit against the

Town of Weare, its elected officials, and several of its police

officers, alleging state and federal claims arising from James’s

employment as an officer in the Weare Police Department.

Defendants have moved to dismiss the Carneys’ amended complaint

for failure to comply with Federal Rules of Civil Procedure 8

and 12(f). Plaintiffs object.

Background

James J. Carney worked as a police officer in various

positions at the Weare Police Department (the “WPD”) from

December 1992 through July 1, 2013, which is the date when

Carney alleges the WPD constructively discharged him. In

response to this alleged discharge and other events that

occurred during his employment, Carney brings federal civil

rights claims and state claims against 14 defendants, including

WPD officers, Weare elected officials, and the Town of Weare. In addition, Tracy Carney, James’s wife, brings a claim against

defendants for loss of consortium.

The Carneys’ claims are premised on three central

allegations: (1) that defendants harmed Carney by propagating

false statements about him; (2) that defendants sexually

harassed Carney and retaliated against him for reporting that

harassment; and (3) that defendants violated Carney’s

constitutional rights and created an intolerable work

environment for him during an investigation into his alleged

misconduct.

The Carneys originally brought these allegations in a

complaint filed in state court that was 71 pages long and

contained 482 paragraphs. A subset of defendants removed the

action to this court. Meanwhile, counsel for defendants asked

the Carneys’ counsel to consider amending the original complaint

because of its length, its inclusion of extraneous matter, and

its references to personnel files and WPD internal

investigations.

In response to defendants’ counsel’s request, the Carneys

filed a First Amended Complaint (doc. 7) on September 24, 2015.

The First Amended Complaint (referred to herein as the “Amended

Complaint”) is 58 pages long2 and contains 427 paragraphs.

2 The Amended Complaint contains a blank 59th page.

2 Defendants’ counsel again asked the Carneys’ counsel to consider

revising the Amended Complaint because of its length and because

it still contained several allegations that referenced

information from internal investigations. The Carneys’ counsel

denied that request. This motion followed.

Discussion

Defendants move to dismiss the Amended Complaint for

failure to comply with Federal Rule of Civil Procedure 8, which

requires that a pleading set forth a “short and plain statement”

of a claim for relief. Defendants also move to dismiss the

Amended Complaint under Federal Rule of Civil Procedure 12(f)

because, they contend, many of its allegations are immaterial or

confidential. The Carneys object, arguing that the allegations

in the Amended Complaint are relevant, and as such, neither the

Amended Complaint nor any of its allegations is improper.

I. 12(f) Motion to Strike

Rule 12(f) provides that “[t]he court may strike from a

pleading . . . any redundant, immaterial, impertinent, or

scandalous matter.” Fed. R. Civ. P. 12(f). Defendants do not

move to strike material from the Amended Complaint, but instead

move to dismiss the entire complaint pursuant to Rule 12(f).

Rule 12(f), however, “is neither an authorized nor a proper way

3 to procure the dismissal of all or a part of a complaint.”

Bryan Corp. v. ChemWerth, Inc.,

, 105 n.1 (D.

Mass. 2012) (internal quotations omitted).3 Accordingly, the

court will treat the portion of defendants’ motion to dismiss

that is based on Rule 12(f) as a motion to strike. Option

Wireless, Ltd. v. OpenPeak, Inc., No. 12-80165-CIV,

, at *2 n.4 (S.D. Fla. Dec. 5, 2012) (“[T]he Court may

treat [an] improperly labeled motion to dismiss as a motion to

strike if it chooses.”).

Courts have “considerable discretion” to strike material

under Rule 12(f). Alvarado-Morales v. Digital Equip. Corp.,

(1st Cir. 1988).4 However, Rule 12(f) “motions are

narrow in scope, disfavored in practice, and not calculated

3 See also Scherer v. Steel Creek Prop. Owners Ass'n, No. 1:13-CV-121,

, at *1 (W.D.N.C. Mar. 3, 2014) (holding that striking an entire complaint “is not the proper remedy under Rule 12(f)”).

4 In their objection, the Carneys argue that the standard under Rule 12(f) must be informed by the nature of the action, specifically, here, the necessity of pleading a municipal custom or policy that would support municipal liability under

. See Rodriguez v. Municipality of San Juan,

(1st Cir. 2011) (“Liability only attaches where the municipality causes the deprivation through an official policy or custom.”) (internal quotations and citations omitted). The Carneys, however, do not specify in their objection what custom or policy they are alleging in the Amended Complaint, or why alleging that policy or custom necessitates the inclusion of otherwise redundant, immaterial, impertinent, or scandalous allegations.

4 readily to invoke the court's discretion.” Manning v. Bos. Med.

Ctr. Corp.,

(1st Cir. 2013) (quoting Boreri v.

Fiat S.P.A.,

(1st Cir. 1985)). That is because

“striking a portion of a pleading is a drastic remedy and it is

often sought by the movant simply as a dilatory or harassing

tactic.”

(internal quotations omitted). As the moving

party, defendants bear the burden of showing that the

allegations should be struck under Rule 12(f). Berke v.

Presstek, Inc.,

(D.N.H. 1998).

Defendants make two separate arguments with respect to Rule

12(f). First, defendants cite a number of allegations that

contain information they claim Carney learned while conducting

WPD investigations. Defendants argue that these allegations are

improper because they contain information that is confidential

under

, II (“RSA 516:36, II”),

which prohibits the admission in most civil actions of evidence

related to internal police investigations. Second, defendants

argue that the complaint is “rife with allegations” that are

immaterial and designed to embarrass individual defendants. The

Carneys, on the other hand, contend that the allegations in the

Amended Complaint are relevant and that RSA 516:36, II is

inapplicable.

5 A. RSA 516:36, II

RSA 516:36, II provides in pertinent part that:

All records, reports, letters, memoranda, and other documents relating to any internal investigation into the conduct of any officer . . . of any . . . municipal law enforcement agency . . . shall not be admissible in any civil action other than in a disciplinary action between the agency and its officers, agents, or employees.

Defendants cite multiple allegations in the Amended Complaint

that they claim contain personnel information that is

confidential under RSA 516:36, II and should be struck under

Rule 12(f). In response, the Carneys argue that RSA 516:36, II

does not apply to allegations made in complaints or to federal

civil rights actions.

RSA 516:36, II is an evidentiary rule concerning the

admissibility of certain “records, reports, letters, memoranda,

and other documents.” The Amended Complaint contains 427

paragraphs of allegations. There are no allegations in the

Amended Complaint that reproduce or reference documents from WPD

internal investigations. RSA 516:36, II, by its terms, does not

apply here. Whether the Carneys may introduce at trial the

kinds of confidential documents described in RSA 516:36, II is a

question for another day.

Defendants concede that the literal terms of RSA 516:36, II

may not apply here, acknowledging that the “references to

6 information arising from investigations” might not violate “the

letter of the statute.” Doc. 8 at 4-5. Instead, defendants

contend that the court should strike the cited allegations

because they “violate[] the spirit” of RSA 516:36, II.

The

court disagrees. Assuming for the sake of argument that RSA

516:36, II applies in this federal action, the potential

inadmissibility of the cited allegations does not provide a

basis for striking them from the Amended Complaint.

As a number of courts have held, it is improper to raise

evidentiary questions, such as those concerning admissibility

and relevance, in Rule 12(f) motions.6 That is because

“questions such as relevancy and admissibility . . . generally

require the context of an ongoing and unfolding trial in which

to be properly decided.” Vite Techs., LLC v. Smith & Nephew,

Inc., No. 14-1507-SLR,

, at *1 (D. Del. July 23,

2015) (quoting Lipsky v. Commonwealth United Corp.,

See e.g., Gallagher v. Funeral Source One Supply & Equip. Co., No. 14-CV-115-PB,

, at *3 n.2 (D.N.H. Feb. 24, 2015) (“[T]he majority of courts that have addressed the question [conclude] that Rule 12(f) does not permit allegations in a complaint or counterclaim to be stricken solely because they are based on potentially inadmissible evidence.”); Tolar v. Cummings, No. 2:13-CV-00132-JEO,

, at *6 (N.D. Ala. Aug. 11, 2014) (“[C]ourts generally hesitate to strike allegations in a pleading based on arguments at the threshold of the action that evidence of pled circumstances would not be admissible at trial . . . .”).

7 887, 893 (2d. Cir. 1976)). That is particularly true here

because the Carneys insist that the personnel information came

from independent sources, which is a dispute that cannot be

decided on the pleadings alone. Therefore, RSA 516:36, II

provides no basis for striking the personnel information from

the Amended Complaint.

B. Immaterial Allegations

To show that matter is immaterial, defendants must

demonstrate that it has “no essential or important relationship

to the claim for relief or the defenses being plead[ed].”

Petrie v. Elec. Game Card, Inc.,

(9th Cir.

2014). Defendants assert that the Amended Complaint is “rife

with” immaterial allegations, but they fail to identify which

specific allegations are immaterial and why. Thus, defendants

have failed to meet their burden under Rule 12(f), and the court

will not strike any allegations from the Amended Complaint on

immateriality grounds.

The court notes, however, that a number of the allegations

in the Amended Complaint do appear immaterial under Rule 12(f).

Although courts may strike matter under Rule 12(f) on their own

motion, see Fed. R. Civ. P 12(f)(1), the court declines to do so

here given the disfavored status of that remedy. Further, as

discussed below, the court is dismissing the Amended Complaint

8 without prejudice for failing to comply with Rule 8. Should the

Carneys file an amended pleading, the court expects that they

will excise any immaterial allegations to ensure that the new

pleading complies with Rule 8. See Minahan v. Town of E.

Longmeadow, No. 12-30203-MAP,

, at *2 (D. Mass.

Apr. 22, 2014) (noting that Rule 12(f) is a device to reinforce

Rule 8’s brevity requirements).

Accordingly, the court denies defendants’ motion to strike.

II. Motion to Dismiss

Rule 8 provides that a complaint “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).7 Courts

may dismiss complaints that fail to comply with Rule 8’s “short

and plain statement” mandate. See Kuehl v. F.D.I.C.,

(1st Cir. 1993) (affirming dismissal of 43-page

complaint and holding that “[a] district court has the power to

7The Carneys argue that the Supreme Court’s opinion in Bell Atlantic Corp. v. Twombley,

(2006), which required plaintiffs to plead enough facts “to state a claim to relief that is plausible on its face,” creates an inherent conflict with Rule 8’s short and plain statement requirement. That is not so. As the First Circuit has observed, to plead a plausible claim for relief under Twombley, plaintiffs need not “include detailed factual allegations,” but only “sufficient factual matter to state a claim to relief that is plausible on its face.” Goldstein v. Galvin,

(1st Cir. 2013).

9 dismiss a complaint when a plaintiff fails to comply with . . .

Rule 8(a)(2)’s ‘short and plain statement’ requirement”).

Defendants argue that the Amended Complaint does not comply

with Rule 8 for two principal reasons. First, defendants argue

that many of the allegations in the Amended Complaint are overly

complex, thereby creating an unreasonable burden for defendants

to answer them. Second, defendants assert that the Amended

Complaint is unnecessarily long and contains numerous immaterial

allegations, some of which, they contend, are included only to

embarrass certain defendants.

A. Complexity of Allegations

Although not cited by either party, Federal Rule of Civil

Procedure 10(b) governs the form of paragraphs in a pleading.

Under that rule, each paragraph must be “limited as far as

practicable to a single set of circumstances.” Fed. R. Civ. P.

10(b). “What constitutes a single set of circumstances will

depend upon the nature of the action and be determined in light

of the basic objective of the rule, which is to insure that the

contents of each paragraph are composed so as to produce a lucid

pleading.” 5A Charles Alan Wright et al., Fed. Practice &

Procedure § 1322 (3d ed.). Defendants argue that they cannot

meaningfully respond to the Amended Complaint because its

paragraphs are too complex and “contain multiple allegations

10 against multiple defendants.” Doc. 8 at 2. In support of this

contention, defendants cite a number of paragraphs as examples.

In response, the Carneys argue that the cited paragraphs are not

overly complex and do not create a burden for defendants to

respond.

The court has reviewed the paragraphs that defendants cite.

Although most of the paragraphs do contain multiple allegations,

the allegations all concern one common nucleus of facts. See,

e.g., Amended Complaint at ¶ 88 (several sentence paragraph

detailing one conversation). To the extent the paragraphs

involve multiple defendants, they contain allegations that those

defendants, in concert, engaged in the same wrongdoing. See,

e.g., id. at ¶¶ 138-140 (detailing an alleged meeting among

several defendants). Had the Carneys broken these allegations

into separate paragraphs, the result would be a much longer

pleading replete with redundant allegations. Therefore, the

court finds that the Amended Complaint’s paragraph structure

does not provide a basis to dismiss under Rule 8.

B. Length of Complaint

When assessing whether a pleading complies with Rule 8’s

short and plain statement requirement, courts should assess “the

nature of the action, the relief sought . . . and a number of

other pragmatic matters.” 5 Charles Alan Wright et al., Fed.

11 Practice & Procedure § 1217 (3d ed.). “Although verbosity and

length are not generally sufficient grounds for dismissal,

complaints that are unnecessarily lengthy, repetitive,

convoluted, or otherwise difficult to comprehend may be

dismissed.” See Chalifoux v. Chalifoux, No. 14-CV-136-SM,

, at *1 (D.N.H. Apr. 25, 2014) (quoting United States

ex rel. Cafasso v. Gen. Dynamics C4 Sys.,

, 1058–59

(9th Cir. 2011)). Dismissal is warranted under such

circumstances “because unnecessary length places an unjustified

burden on the court and on the party who must respond to it.”

Greg Beeche Logistics, LLC v. Skanska USA Bldg., Inc., No. 1:12-

CV-11121,

, at *5 (D. Mass. Aug. 5, 2014)

(internal quotations omitted).

After carefully reviewing the Amended Complaint, the court

concludes that it does not comply with Rule 8. The 58-page and

427 paragraph Amended Complaint is a prolix narrative of events

that occurred during Carney’s employment and alleged

termination. It details minutiae during that period that have

little to no bearing on the core of the claims the Carneys

allege. Moreover, many of the relevant allegations are repeated

several times. Far from being a short and plain statement of

the Carneys’ claims, the Amended Complaint’s length obscures the

12 true substance of those claims and places an unreasonable burden

on the defendants who must respond to it.

In addition, the Amended Complaint contains allegations of

misconduct that appear to be included only to embarrass certain

defendants. These allegations involve conduct dissimilar to the

core misconduct that the Carneys allege and involve defendants’

interactions with unrelated third parties. For example, the

Carneys allege that one defendant had an extramarital affair

with a town employee. See Amended Complaint, at ¶¶ 44-46. They

also allege that the WPD investigated another defendant

concerning an affair with a WPD officer’s wife, dangerous and

unstable off-duty conduct, and inappropriate conduct with

members of another police department. Id. at ¶¶ 51-52. It is

not clear to the court how these types of allegations relate to

the claims in the Amended Complaint.8

Absent any such relation, these allegations are vulnerable

to being struck under Rule 12(f) as “immaterial” or

“scandalous.” See, e.g., Phase 3 Tech. & Const., Inc. v. Cole,

8 The Carneys contend that some of the allegations of misconduct are relevant for collateral purposes, such as showing that certain defendants had knowledge of the law governing police discipline. Assuming that these collateral matters are relevant to this action, the Carneys could (and should) have attempted to allege these facts without including irrelevant and derogatory allegations about defendants’ underlying misconduct.

13 No. 3:15-CV-00107-LRH,

, at *2 (D. Nev. June 26,

2015) (striking allegations of extramarital affair that were

immaterial and scandalous); Gauthier v. United States, No.

CIV.A. 4:10-40116,

, at *12 (D. Mass. Sept. 2,

2011) (“Material is ‘scandalous’ under Rule 12(f) if it

improperly casts a derogatory light on someone.”).9 Although

Rule 12(f) is not an independent basis for dismissing a

pleading, see supra at n.1, the presence of material appearing

to flout Rule 12(f) supports the conclusion that the Amended

Complaint violates Rule 8. That is because, “Rule 12(f) is

designed to reinforce the requirement in Rule 8[] that pleadings

be simple, concise, and direct.” See Minahan,

,

at *2.

Accordingly, the court dismisses the Amended Complaint but

grants the Carneys leave to file a further amended complaint.

Conclusion

For the foregoing reasons, the court grants the defendants’

motion (doc. no. 8) and dismisses the Amended Complaint without

prejudice. The court grants the Carneys leave to file an

9 See also Fed. R. Civ. P. 11(b) (“By presenting to the court a pleading, written motion, or other paper . . . an attorney . . . certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . it is not being presented for any improper purpose, such as to harass . . . .”).

14 amended complaint that complies with the Federal Rules of Civil

Procedure by February 25, 2016. In doing so, the Carneys must

avoid alleging material that is scandalous or immaterial under

Rule 12(f) and shall make good faith efforts to truncate the

length of the new complaint.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

January 26, 2016

cc: Brian J.S. Cullen, Esq. Russell F. Hilliard, Esq. Daniel P. Schwarz, Esq. Tony F. Soltani, Esq. Laura Ann Spector, Esq.

15