Free Response to Motion - District Court of Arizona - Arizona

1 William R. Hobson, SBN 006887
LAW OFFICE OF WILLIAM R. HOBSON
2 7303 W. Boston Street
- Chandler, AZ 85226
3 Telephone No. (480) 705-7550
Facsimile No. (480) 705-7503
4 Attorney for Plaintiff
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 II ONALD CHAPMAN
Case No: CV 03 2537 PHX DGC
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11 RESPONSE TO DEF ENDANT
pgagmgffa JOHN E. POTTER, POSTMASTER
l2 GENERAL, UNITED STATES
POSTAL SERVICE’S MOTION TO
13 oHN E. Porrnn, POSTMASTER STRIKE-
GENERAL, UNITED STATES
14 osriu. snnvtcit; NAr1oNAL
l' OSTAL MAIL I·IANDLER’S UNION,
I5 VON NE PEARSON, SEPARATELY
· D IN HER INDIVIDUAL
16 CAPACITY,
17 Defendants.
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19 Defendant John Potter, Postmaster General of the United States Postal Service
20 (USPS) files a motion to strike pursuant to Rule l2(t) of the Federal Rules of Civil
21
Procedure. USPS does so on the theory that Plaintiff Donald Chapman ("Mr. Chapman”)
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23 has attached documents to his amended complaint "to subvert the Federal Rules of
24 Evidence by attaching documents to the Complaint on which he bases his case. By
25 attaching the documents to [Mr. Chapman’s] Complaint, [Mr. Chapman] can guarantee
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1 ase 2:03-cv-02537-DGC Document 124 Filed 11/O7/2005 Page 1 of 4

1 admissibility without having the Court determine whether the documents are truly
, 2 admissible at trial." Motion at 2.
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Mr. Chapman’s counsel is unable to discover any authority for the proposition
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5 asserted by the United States attorney that parties can take from the Court the power to
6 determine the admissibility of evidence in matters properly before the Court.
7 Moreover, in the ex erience of Mr. Cha man’s counsel, as a general matter, leadings are
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generally not offered in evidence at trial. While the documents attached to Mr. Chapman’s
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§ 10 amended complaint will be offered at the appropriate time and subject to the Court’s
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E __ 11 rulings, be admitted into evidence, that will occur in the ordinary course and not through
E g § 12 . .
E 5 @ machinations of any counsel.
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E g %_.j _ USPS acknowledges that the motion it brings pursuant to Rule 12(f) is untimely.
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§ § G 15 Motion at 1. Indeed, a previous Rule 12 motion to dismiss by counsel for the USPS was
is.
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g 16 considered by the Court; and denied. USPS’s Counsel’s motion seeks to work around this
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Q 17 im ediment by su esting that the Court strike the attachments "u on the COUI`lI’S own
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initiative," albeit encouraged or suggested by counsel. Motion at 1.
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20 As a general matter, motions brought pursuant to Rule 12(f) are disfavored.
21 Lzpsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2D Cir. 1976) ("Evidentiary
22 uestions, . . . should es ecially be avoided at such a preliminary stage of the roceedings."
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and “Usua1ly the questions of relevancy and admissibility in general require the context of
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25 an ongoing and unfolding trial in which to be properly decided."); Nogler v. Admiral
26 Corp., 248 F.2d 319, 322 (2d Cir. 1957) (“Rule l2(f) should be construed strictly against
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1 striking portions ofthe pleadings on the grounds of immateriality, and if the motion is
, 2 granted at all, the complaint should be pruned with care."): Federated Dept. Stores, Inc. v.
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- Grinnell Corp., 287 F.Supp. 744, 747 (S.D.N.Y.l968) ("[O]rdinarily neither a district court
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5 nor an appellate court should decide to strike a portion of the complaint on the grounds that
6 the material could not possibly be relevant on the sterile field of the pleadings alone."). In
7 rt re Catanella and EF Hutton and Co., Inc. Securities Litigation, 583 F.Supp. 1388,
8 .
1400 (E.D. Pennsylvania 1984), the District Court stated:
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§ The standard for striking under Rule 12(t) is strict. One court has stated that "only
nn 19 allegations that are 'so unrelated to p1aintit`t`s’ claims as to be unworthy of any
Q consideration as a defense' should be striken." EEOC v. Ford Motor Co., 529
· 2 11 P.Supp. 643, 644 (D.Col.l982) (quoting C. Wright & A. Miller, Federal Practice
Z QJ xg . . . . . .
E ,9; gg and Procedure § 1380 at 784 (1969)). Similarly, rrnmatertality under this rule has
5 Q 3 12 been defined as "any matter having no value in developing the issues of a case."
j ig g 13 Oaks v. City 0fFatrhope, Ala., 515 F.Supp. 1004, 1032 (S.D.Ala.l981).
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3 ml e"
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5 g 5 Mr. Chapman observes that the USPS has managed to tile an answer to his
·-· F" 15
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E 16 mended Complaint and even to deny each ofthe paragraphs in which his attachments
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5 17 were referenced. See {lil 53, 59, 73, 80, and 90 of Plaintiff’s First Amended Complaint and
18 compare to 111] 53, 59, 73, 80, and 90 of the Defendant USPS’s answer.
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Mr. Chapman acknowledges that the Court has the power claimed for it by the
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21 USPS. That the Court would be importuned to act as suggested by counsel for the USPS
22 for the reasons she states is, however, unseemly. For the reasons stated herein, Mr.
23 Chapman requests that the Defendant USPS’s untimely, factually unsupported and legally
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incorrect Rule 12(f) Motion to Strike be denied.
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1 Dated this 7th day of November, 2005.
2
0 3
4 LAW OFFICE LLIAM R. HOB SON
5 N
6 . By: _ ‘ ..1
W1l1iam R. Ho son
7 Attorney for Plaintiff
8 Original and a copy filed and copies mailed
this 7h day of November, 2005 to:
z 9 Harriet Bernick, Esq.
‘ 2 I0 United States Attorney’s Office
g 40 N. Central, Ste 1200
F 11 Phoenix, AZ 85004-4408
; g kg Attorney for U.S.P.S. and Yvonne Pearson
4*: m
E cg Q 12 John M. West, Esq.
E g E;} 13 Kathleen Keller, Esq.
3 if 5 Bredhodff & Kaiser, P.L.L.C.
g 3 g 14 805 15 Street NW, Ste 1000
M g gg Washington, DC 20005 ,
E Q U 15 Attorneys for National Postal Mail I-Iand1ers’ Union
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