United States District Court, D. Nebraska
D. Thalken United States Magistrate Judge
matter is before the court on Andrew Yost's (Yost) Motion
to Strike (Filing No. 4). Yost seeks to have portions of Carl
Osentowski's (Osentowski) Complaint stricken as
immaterial and irrelevant. Yost filed a brief (Filing No. 5)
in support of the motion. Osentowski filed a brief (Filing
No. 9) opposing the motion. Yost filed a brief (Filing No.
11) in reply.
case stems from the events occurring during a June 11, 2014,
traffic stop of Osentowski by Yost, a Butler County Deputy
Sheriff. See Filing No. 1 - Complaint ¶¶ 3, 5, 12.
Yost observed Osentowski speeding on Highway 92 in Butler
County, Nebraska. Id. Yost pursued Osentowski for
approximately five minutes before Osentowski noticed Yost and
stopped. Id. ¶¶ 13-14. Osentowski alleges
the manner in which he was seated and the items in the bed of
his truck obstructed his view of the traffic behind him.
Id. ¶¶ 10-11, 13. When Osentowski stopped
his truck, Yost parked behind it, positioned himself behind
his patrol vehicle, drew his firearm, pointed the firearm at
Osentowski, and repeatedly screamed commands at Osentowski.
Id. ¶¶ 17-20. Osentowski alleges he
attempted to comply with Yost's commands, but had
difficulty moving as directed, keeping his hands above his
head, and lying face down on the ground due to various
medical issues. Id. ¶¶ 21-22. When another
officer arrived, Yost directed Osentowski be handcuffed
behind his back, searched, lifted to his feet while
handcuffed, and placed in a patrol vehicle, still handcuffed.
Id. ¶¶ 40-42. Ultimately, Yost issued a
citation to Osentowski for speeding and failure to yield to
an emergency vehicle. Id. ¶ 44. Based on these
allegations, Osentowski claims he suffered emotional harm,
which is ongoing. Id. ¶¶ 45-48.
Additionally, Osentowski claims Yost engaged in excessive
force and conducted an unlawful pat-search under the
circumstances. Id. ¶¶ 49-58. Osentowski
seeks general and special damages for emotional harm and
punitive damages. Id. ¶ 59.
filed the instant motion to strike from the Complaint all
allegations of Osentowski's subjective perceptions,
attitudes, feelings, and intentions. See Filing No. 5 -
Brief. 2. Yost contends the disputed allegations are
irrelevant and immaterial to Osentowski's claims filed
pursuant to 28 U.S.C. § 1983 and the U.S.
Constitution's Fourth Amendment. Id.
Specifically, Yost argues Osentowski's perceptions have
no bearing on the analysis of the claims, which will focus on
the facts and circumstances known and perceived by Yost.
Id. at 2-3. Further, Yost asserts Osentowski's
allegations “attempt to recast the analysis into one
that focuses on the officer's conduct in light of the
Plaintiff's subjective thoughts and attitudes rather than
the correct analysis which requires an objective inquiry
according to the facts perceived by the officer on the
scene.” See Filing No. 11 - Reply p. 3. For this
reason, Yost argues the allegations are prejudicial.
Id. Nevertheless, Yost concedes certain allegations
are relevant to Osentowski's damage claims. Id.
maintains the relevance of the disputed allegations. See
Filing No. 9 - Response p. 1-2. Osentowski asserts these
allegations contain facts admissible for trial and “set
the stage, provide context for the allegations, or directly
support [his] claim for damages.” Id. at 2.
Further, Osentowski contends compensatory damages allowed by
§ 1983 include injury for impairment of reputation,
personal humiliation, and mental anguish and suffering.
Federal Rules of Civil Procedure provide a mechanism for the
court to “strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.” See
Fed.R.Civ.P. 12(f). A court possesses liberal discretion when
ruling on motions to strike under Rule 12(f). BJC Health
Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir.
2007). However, courts view motions to strike with disfavor
because striking is an extreme measure and the motion may
only serve to delay proceedings. See id.;
Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063
(8th Cir. 2000). In fact, “[t]he rule's purpose is
to conserve time and resources by avoiding litigation of
issues which will not affect the outcome of a case.”
Big Cats of Serenity Springs, Inc. v. Vilsack, 84
F.Supp.3d 1179, 1198 (D. Colo. 2015) (citation omitted).
Accordingly, a motion to strike will be denied if the content
sought to be stricken “is sufficient as a matter of law
or if it fairly presents a question of law or fact which the
court ought to hear.” Lunsford v. United
States, 570 F.2d 221, 229 (8th Cir. 1977) (quotation
omitted). Similarly, “the Eighth Circuit Court of
Appeals has ruled that even matters that are not
‘strictly relevant' to the principal claim at issue
should not necessarily be stricken, if they provide
‘important context and background' to claims
asserted or are relevant to some object of the pleader's
suit.” Holt v. Quality Egg, L.L.C., 777
F.Supp.2d 1160, 1168 (N.D. Iowa 2011).
Immaterial matter is that which has no essential or important
relationship to the claim for relief or the defenses being
pleaded. Impertinent matter consists of statements that do
not pertain, and are not necessary, to the issues in
question. Scandalous matters are allegations that
unnecessarily reflect on the moral character of an individual
or state anything in repulsive language that detracts from
the dignity of the court. To prevail on a motion to strike
text from the complaint, the movant must clearly show that
the challenged matter has no bearing on the subject matter of
the litigation and that its inclusion will prejudice the
Freydl v. Meringolo, No. 09 Civ. 07196, 2011 WL
2566082, at *1 (S.D.N.Y. June 16, 2011) (internal quotations
and citations omitted) (noting “granting the motion to
strike is not warranted where prejudice is not clearly
demonstrated”); see Corrections USA v. Dawe,
504 F.Supp.2d 924, 938 (E.D. Cal. 2007); Canadian St.
Regis Band of Mohawk Indians ex rel. Francis v. New
York, 278 F.Supp.2d 313, 325 (N.D.N.Y. 2003) (noting
“prejudice is not assumed simply by the inclusion in
the . . . complaint of the verbose, immaterial, conclusory,
or evidentiary matter”). Accordingly, allegations will
not be stricken as immaterial under this rule unless it can
be shown that no evidence in support of the allegation would
be admissible. United States v. Shell Oil
Co., 605 F.Supp. 1064, 1085 (D. Colo. 1985).
Finally, a party must usually make a showing of prejudice
before a court will grant a motion to strike. Sierra Club
v. Tri-State Generation & Transmission Ass'n,
Inc., 173 F.R.D. 275, 285 (D. Colo. 1997) (citation
shows how the challenged allegations serve an essential or
important relationship to the claims for relief. The subject
matter of these allegations bear on the remaining litigation
and may fairly present a question of fact for consideration
by these parties. Likewise, the allegations subject Yost to
no additional burden in his attempts to respond. Moreover,
Yost fails to show the challenged allegations cause specific
undue prejudice or lack a relationship to the subject matter
of the litigation, and he admits a portion of them bear on
damages. Osentowski's challenged allegations relate to
the circumstances of the traffic stop and, although
ostensibly disputed by Yost, the underlying events may have
been perceived by Yost. For example, Yost seeks to strike
Osentowski's description of his truck as having a covered
bed filled with small trees, which blocked Osentowski's
view (see Filing No. 11 - Reply p. 3-4). Certainly, Yost
observed the truck from behind and later searched it, such
observations being relevant to his conduct. Additionally,
Yost argues no facts support the allegation Osentowski was
“unable to stand by himself” (see Filing No. 11
-Reply (referencing Filing No. 1 - Complaint ¶¶
40-41)), however an adjoining undisputed fact is Yost pulled
Osentowski to his feet. These allegations support
Osentowski's theory about the manner in which Yost
violated Osentowski's rights and such theory is subject
to potential rebuttal by Yost. Osentowski's beliefs and
perceptions, even if disputable, do not require the
allegations stricken. Moreover, such allegations fairly
present a question of fact in connections with whether Yost
acted reasonably under the circumstances. Upon consideration,
IT IS ORDERED:
Yost's Motion to Strike (Filing No. 4) is denied.