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Koch v. White

United States District Court, D. Columbia

September 29, 2015

Randolph S. Koch, Plaintiff,
v.
Mary Jo White, et al., Defendants

Page 159

          RANDOLPH S. KOCH, Plaintiff, Pro se, Rockville, MD.

         For ELISSE B. WALTER, in her official capacity as Chairman, U.S. Securities and Exchange Commission, Defendant: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 160

         MEMORANDUM OPINION AND ORDER

         Amit P. Mehta, United States District Judge.

         I. INTRODUCTION

         Courts are fond of saying about a lengthy litigation that at some point it must come to an end. This case suffers from the opposite problem--at some point it must commence. Plaintiff Randolph Koch filed this suit on November 29, 2012, claiming that his former employer, the Securities and Exchange Commission (" SEC" ), denied him reasonable accommodations for his disabilities. Nearly three years later, owing to a host of reasons,

Page 161

Defendant Mary Jo White, sued in her official capacity as Chairwoman of the SEC, has yet to file an answer. Instead, the parties and the court are still wrangling over the precise contours of Plaintiff's complaint. That comes to an end today.

         Before the court is Defendant's second Motion to Strike, this time directed at Plaintiff's Second Amended Complaint. Defendant argues that the Second Amended Complaint should be dismissed with prejudice because it fails to comply with Federal Rule of Civil Procedure 8(a)'s " short and plain statement" requirement and with this court's previous orders requiring him to adhere to Rule 8(a). Additionally, although styled as a " Motion to Strike," Defendant makes other arguments that are more in the way of a partial motion to dismiss. Specifically, she argues that Plaintiff cannot revive untimely complaints of failure to provide reasonable accommodations under the " continuing violations" doctrine. She also contends that Plaintiff's Count IV should be dismissed for failure to state a cognizable Bivens claim against four individual SEC employees.

         The court will not strike Plaintiff's Second Amended Complaint and will not dismiss this action with prejudice, as Defendant requests. Nor will it require Plaintiff to re-plead his complaint to remove surplus allegations. However, the broad-sweeping allegations contained in the Second Amended Complaint will not frame this case as it moves forward. Rather, the case will concern only the discrete set of events that formed the basis for an administrative complaint that Plaintiff filed in October 2009, following his termination from the SEC. Claims that relate to prior grievances--apparently, there were many[1]--are dismissed from this lawsuit. For the reasons explained further below, the court grants in part and denies in part Defendant's Motion to Strike.

         II. BACKGROUND

         The long history of this case commenced on November 29, 2012, when Plaintiff filed his original Complaint. Compl., ECF No. 1. He did not serve it for nearly six months. Return of Service, ECF No. 4. Plaintiff's original Complaint was a relatively succinct 14 pages and asserted, on various grounds, three claims: failure to accommodate disabilities, discrimination, and retaliation. See generally Compl. On June 17, 2013, Defendant moved to dismiss for failure to exhaust administrative remedies, construing Plaintiff's claims to arise out of an administrative complaint process commenced in 2011 after his termination. See Mem. Op. and Order, ECF No. 19, at 1 [hereinafter " March 31st Order" ]. More than eight months later, after receiving multiple extensions of time, Plaintiff filed his opposition on February 28, 2014. He asserted that Defendant had identified the wrong administrative complaint and that this suit concerned an administrative complaint that he filed in 2009 challenging his termination from the SEC. Id. at 2. In her reply, Defendant conceded that, if Plaintiff's Complaint was premised on the 2009 administrative complaint, Plaintiff had exhausted his claims. Id. In light of this concession, Judge Friedman (who, at the time, was assigned to the case) treated Defendant's Motion as a motion for a more definite statement under Rule 12(e) and ordered Plaintiff to file an amended complaint that contained:

[A] short and plain statement of [the] claim that shows that he is entitled to

Page 162

relief and that distinguishes plaintiff's claims from those that he has brought in related actions. In addition, plaintiff shall clarify precisely to which administrative complaint this action corresponds, providing the administrative claim number and the history of the proceeding of that particular claim (and only that claim) at the SEC and the EEOC. The Court also encourages Mr. Koch to avoid extraneous and otherwise unrelated information in order to avoid confusion with prior litigation.

Id. at 3-4.

         Plaintiff's Amended Complaint, filed on June 13, 2014, was anything but " short and plain." It was 87 pages long and contained at least 222 separate paragraphs. Am. Compl., ECF No. 22. It recited extraneous facts regarding his life, medical history, and prior employment and otherwise failed to comply with Judge Friedman's March 31st Order. See id. Further, Plaintiff sought to add four individual defendants--David Kotz, Noelle Maloney, Brian Bressman, and Thomas Funciello (the " Individual Defendants" )--all of whom are employees of the SEC. Am. Compl. ¶ 6. Plaintiff asserted a Bivens claim against these individuals for " Unlawful Search and Seizure," alleging that they illegally monitored his comings and goings from the SEC using the agency's electronic entry, or " swipe card," records. Id. ¶ ¶ 213-15.

         On July 10, 2014, Defendant filed her first Motion to Strike the Amended Complaint, ECF No. 27, a motion to which Plaintiff did not respond, despite Judge Friedman's granting him multiple extensions, see Min. Order, Sept. 3, 2014; Min. Order, Oct. 2, 2014. On November 5, 2014, Judge Friedman granted the Motion to Strike, finding that the " amended complaint does not contain any of the information the Court ordered plaintiff to include." Mem. Op. and Order, ECF No. 32, at 2. Judge Friedman ordered Plaintiff to " file a complaint that complies with Rule 8(a) . . . on or before February 3, 2015, or this case will be dismissed with prejudice. No extensions will be granted." Id. at 3. Plaintiff filed his Second Amended Complaint, as directed, on February 3, 2015. Second Am. Compl., ECF No. 33-1.

         The Second Amended Complaint is considerably shorter than its prior iteration. It is 23 pages and contains 90 paragraphs. Id. As required by the March 31st Order, the Second Amended Complaint specifies the administrative claim on which it is based, identifies the claim number, id. ¶ 73, and summarizes the history of that proceeding, id. ¶ ¶ 59-67. But it also contains extraneous allegations. Like the Amended Complaint, it methodically recites Plaintiff's lengthy medical history. Id. ¶ ¶ -33.[2] It also devotes multiple paragraphs to the SEC's prior alleged failures to accommodate his disabilities. Id. ¶ ¶ 29-33.

         The Second Amended Complaint alleges that the SEC committed " continuing violations" of the Rehabilitation Act of 1973 by failing to accommodate Plaintiff's disabilities, which led to his termination on October 13, 2009. Id. ¶ ¶ 68-73. Plaintiff also advances claims for discrimination on the ground that he is Jewish, as well as claims of retaliation ...


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