United States District Court, D. Columbia
Randolph S. Koch, Plaintiff,
Mary Jo White, et al., Defendants
RANDOLPH S. KOCH, Plaintiff, Pro se, Rockville, MD.
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,
OPINION AND ORDER
Mehta, United States District Judge.
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,
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.
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.
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--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.
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
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.
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. ¶ ¶
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.
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. It also devotes multiple
paragraphs to the SEC's prior alleged failures to
accommodate his disabilities. Id. ¶ ¶
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 ...