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Augustus v. Harvey

September 29, 2005

ALMA T. AUGUSTUS, PLAINTIFF,
v.
FRANCIS J. HARVEY, SECRETARY OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Alma Augustus filed an eleven-count employment discrimination complaint against the United States Army which also alleged various violations of the Constitution, federal statutes, and internal Army regulations and operating procedures. On September 29, 2004, several of plaintiff's claims were dismissed for want of subject matter jurisdiction. Plaintiff now moves for relief from judgment, and moves for sanctions and to strike several of defendant's filings under Federal Rules of Civil Procedure 60(b), 11, and 12(f), respectively. Because plaintiff demonstrates no cause to reinstate her dismissed claims, plaintiff's motion for relief from judgment will be denied. Plaintiff's motion to strike will be denied because plaintiff fails to point to specific, objectionable material in defendant's answer, and Rule 12(f) does not authorize striking non-pleadings. Finally, because plaintiff's motion for sanctions does not meet the specificity requirement of Rule 11 and was not filed as a separate motion as the rule requires, the motion will be denied.

BACKGROUND

Plaintiff, an African-American female, filed a complaint and motion for a temporary restraining order alleging that the United States Army engaged in race-based and sex-based employment discrimination by failing to promote her, removing her from duty and retaliating against her for protected whistleblowing activity in violation of the Constitution, federal statutes, and Army regulations. Plaintiff further contends that the Army failed to disclose records she requested under the Freedom of Information Act, 5 U.S.C. § 552 (2000), violated the Administrative Procedure Act, 5 U.S.C. § 702, and delayed investigating complaints she filed with the National Guard Bureau. Defendant filed his opposition to plaintiff's motion for a temporary restraining order with several exhibits attached, including a declaration by Colonel Charles Baldwin, a memorandum from the National Guard Bureau, and a memorandum from Lieutenant General Roger Schultz with an accompanying investigative report.

Defendant moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim on which relief can be granted. Plaintiff opposed defendant's motion to dismiss and moved for summary judgment. In a Memorandum Opinion and Order issued on September 29, 2004, defendant's motion to dismiss was granted in part and denied in part and plaintiff's motion for summary judgment was denied. Defendant filed an answer on November 30, 2004. On February 14, 2005, alleging fraud and misconduct, plaintiff filed a motion for relief from the September 29, 2004 Order, and a motion to impose Rule 11 sanctions and to strike defendant's answer, the Baldwin declaration, the memorandum from the National Guard Bureau and the Schultz memorandum. The defendant opposed plaintiff's motions.

DISCUSSION

I. PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT

Federal Rule of Civil Procedure 60(b)(3) grants district courts discretion to relieve a litigant from a final judgment upon a showing of fraud, misrepresentation, or other misconduct of an adverse party. Fed. R. Civ. P. 60(b)(3). In exercising this discretion, a district court "must balance the interest in justice with the interest in protecting the finality of judgments." Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004). A litigant seeking to have a final judgment set aside under Rule 60(b)(3) must prove the fraud or misconduct by clear and convincing evidence. Shepherd v. ABC, 62 F.3d 1469, 1477 (D.C. Cir. 1995); Am. Cetacean Soc'y v. Smart, 673 F. Supp. 1102, 1105 (D.D.C. 1987). The party requesting relief must also show "prejudice," specifically that the alleged misconduct prevented her from fully and fairly presenting her case. Summers, 374 F.3d at 1193; 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2860 (2d ed. 1995). A motion for relief from judgment fails if it is "merely an attempt to relitigate the case or if the court otherwise concludes that misrepresentation has not been established." Smart, 673 F. Supp. at 1105; 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2860 (2d ed. 1995).

The September 29, 2004 Order was not a final order from which plaintiff may seek relief under Rule 60(b). See Fed. R. Civ. P. 54(b) ("In the absence of [an express] determination and direction, any order . . . which adjudicates fewer than all the claims . . . of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order . . . is subject to revision at any time before the entry of judgment adjudicating all the claims . . . of all the parties."); James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990) (holding that a dismissal order was interlocutory because some defendants remained parties to the action); Consolidation Coal Co. v. Dep't of Interior, 43 F. Supp. 2d 857, 862-63 (S.D. Ohio 1999) ("[Rule] 54(b) makes it clear that an order which dismisses fewer than all claims . . . is . . . a non-final order."); Wanamaker v. Columbian Rope Co., 907 F. Supp. 522, 526-27 (N.D.N.Y. 1995) (holding that an order "dismissing some but not all of the defendants, and dismissing some but not all of plaintiff's claims, was interlocutory and thus not 'final' for purposes of Rule 60(b)"). Even if the Order were a final order covered by Rule 60(b), plaintiff's filings still fail to establish by clear and convincing evidence any fraud or misconduct on the part of the defendant. The very few places in plaintiff's filings that do allege fraud are wholly conclusory and often unrelated to plaintiff's ability to fully and fairly present her case. As an example, plaintiff states:

The Defendant's defense is based on fraud upon the Court perpetrated through (1) Defendant's fraudulent portrayal to the Court that Plaintiff did not exhaust administrative remedies. (2) Defendant's fraudulent portrayal to the Court that Plaintiff could have sought relief through the ABCMR and the SSB. (3) Fraudulent Declaration of Colonel Charles Baldwin, (4) False official statements in Defendants Exhibits Three and Four, statements made by Lieutenant General Schultz, Major General Jackson and Mr. James Hise (Chief Counsel for the NGB). The Honorable Court, in turn, has relied upon the Defendant's fraud, misrepresentations of fact and deceit in rendering the Court's decisions in the Memorandum Opinion and Order.

(Pl.'s Reply in Supp. of Mot. for Relief from J. at 4.) These statements, made without supporting facts or evidence, are insufficient to meet the burden of proof by clear and convincing evidence. Moreover, the vast majority of the assertions in plaintiff's filings reargue issues previously decided in the September 29, 2004 Order. For example, the heading of the second section of plaintiff's memorandum in support of her motion for relief from judgment is "The Honorable Court Erred in its Opinion on Exhaustion." (Mem. in Supp. of Pl.'s Mot. for Relief from J. at 13.) This section of plaintiff's memorandum squarely reargues the issue of administrative exhaustion that already has been decided in this case. (See id. at 13-16.) Because plaintiff improperly seeks relief under Rule 60(b) from a non-final order, and in any event has not established by clear and convincing evidence fraud or misconduct on the part of the defendant but simply attempts to relitigate claims that were previously dismissed, her motion for relief from judgment will be denied.*fn1

II. PLAINTIFF'S MOTION TO STRIKE

A. Defendant's Answer

Federal Rule of Civil Procedure 12(f) vests discretion in the trial court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). If a party moves to strike a portion of a pleading from the record, the party must do so "before responding to [the] pleading or, if no responsive pleading is permitted[,] . . . within 20 days after the service of the pleading upon the party." Id. As a general rule, courts disfavor motions to strike, Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981); Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 189-90 (D.D.C. 2005), because striking a pleading is a drastic remedy and is often sought as a dilatory or harassing tactic by the moving party. 5C Wright & Miller, Federal Practice and Procedure: Civil 3d ยง 1380 (3d ed. 2004). To be stricken, an allegation must be "so unrelated to the plaintiff's claims ...


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