Clark v. Hotard

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ALEXANDER CLARK

CIVIL ACTION

VERSUS

NO. 22-326-JWD-RLB

JEAN HOTARD, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion to Strike LPSO Defendants’ Affirmative

Defenses Pursuant to Fed. R. Civ. P. 12(f) (Doc. 105) (“Motion”) and supporting memorandum

(Doc. 106) filed by Plaintiff Alexander Clark (“Plaintiff”). Defendants Jason Ard, Sheriff of

Livingston Parish; Calvin Taylor Bowden; and Sergeant Jean Hotard (“LPSO Defendants”) oppose

the Motion, (Doc. 115), and Plaintiff has filed a reply, (Doc. 120). Oral argument is not necessary.

The Court has carefully considered the law, the facts in the record, and the arguments and

submissions of the parties and is prepared to rule. For the following reasons, Plaintiff’s Motion is

denied.

I. RELEVANT BACKGROUND AND PARTIES’ ARGUMENTS

This case arises from injuries Plaintiff suffered as a result of alleged constitutional

violations occurring during and after a traffic stop conducted by officers with the Livingston Parish

Sheriff’s Office (“LPSO”) and Denham Springs Police Department. (First Am. Compl. (“FAC”)

¶¶ 2–9, Doc. 89.) Plaintiff was ultimately charged with Failure to Use Turn Signal (which was

later dropped), Resisting an Officer, and Obstruction of Justice, but he was only found guilty of

the Obstruction charge. (Id. ¶¶ 112–113.)

Plaintiff filed suit asserting claims under state and federal law of false arrest, false

imprisonment, excessive force, unreasonable search and invasion of privacy, bystander liability,

Monell liability, denial of equal protection, intentional race discrimination, and conspiracy to

violate equal protection. (Id. ¶¶ 230–336.)

LSPO Defendants filed a Motion to Dismiss Pursuant to Rule 12(c) (Doc. 100) (“MTD”).

These defendants argue (1) that a majority of Plaintiff’s claims are barred by his conviction under

Heck v. Humphrey, 512 U.S. 477 (1994); and (2) that he fails to state a viable Monell claim against

Sheriff Ard. (See Doc. 100-1 at 1–4.) The Court will take the MTD up at a later time.

Plaintiff filed the instant Motion seeking to strike “virtually all of the LPSO Defendants’

Affirmative Defenses as filed in their Answer to Plaintiff’s First Amended Complaint and Jury

Demand.” (Doc. 106 at 7 (citing Doc. 99).) Plaintiff claims that these defendants have “filed what

is less a serious Answer than a puzzling, inscrutable document, with affirmative defenses virtually

all of which are insufficient because they are inapplicable defenses to the cause of action in the

FAC, or lack any specificity and so fail to constitute fair notice to plaintiff.” (Id.)

For example, Plaintiff complains that LPSO Defendants do not specify to which counts the

Heck defense applies. (Doc. 106 at 12.) Moreover, Plaintiff contends that LPSO’s Defendants’

qualified immunity defense lacks specificity and that, in any event, qualified immunity is not a

valid defense at all. (Id. at 13–20.) Similar complaints of lack of specificity are made with respect

to other affirmative defenses like good faith immunity under state law. (Id. at 20–21.) Plaintiff

likewise maintains that some defenses, like comparative fault, are not applicable to federal

constitutional claims or state law battery claims. (Id. at 24–25.) Plaintiff even claims that LPSO

Defendants improperly listed “failure to state a claim” as an affirmative defense, and other so-

called affirmative defenses are in fact not so. (Id. at 25–30.)

LPSO Defendants respond that, “what’s sauce for the goose is sauce for the gander,” and

many of the allegations in the FAC fail to live up to Plaintiff’s own exacting standard. (Doc. 115

at 3–4.) LPSO Defendants then say that the Heck defense is pled with specificity, particularly when

read with the MTD filed contemporaneously with the answer. (Id. at 4–5.) LPSO Defendants have

similarly provided fair notice of their qualified immunity defense, and the Court should reject

Plaintiff’s contention that qualified immunity is not a viable defense as a general matter. (Id. at 5–

8.) Other defenses, such as those rooted in good faith and justifiable conduct and those related to

third-party liability and limitation of liability under La. R.S. §§ 13:5106 & 5112, are also

sufficiently specific and relevant to Plaintiff’s claims. (Id. at 8–10, 12–13.) Plaintiff’s contentions

about the state law immunity of La. R.S. § 9:2798.1 is also meritless, as it clearly applies to his

state law causes of action, and there’s no prejudice. (Id. at 10–11.) Arguments about the mitigation

defense are based on an obvious typo and a narrow conception of relevance. (Id. at 14.) Plaintiff

complains about the comparative fault defense, but he also makes a negligence claim. (Id. at 14–

15.) As to the inclusion of the failure to state a claim defense, this (1) is permissible; (2) is a

question of legal sufficiency rather than pleading with sufficient factual specificity; and (3) in any

event, is in no way prejudicial. (Id. at 15–16.) LPSO Defendants close by urging that, if the Court

is inclined to grant any part of the motion to strike, the Court should allow leave to amend to cure

the deficiencies. (Id. at 17.)

Plaintiff replies that LPSO Defendants are attempting to improperly amend their answer

with their responses, but they have “already had their bite at the apple . . . .” (Doc. 120 at 3.)

Plaintiff reiterates that the affirmative defenses must be pled with specificity, and LPSO

Defendants chose not to do so. (Id. at 3–5.) Moreover, Plaintiff contends that LPSO Defendants

fail to comply with Rule 11, and they cannot amend their deficient answers through their

opposition. (Id. at 5–6.) These defendants also cannot seek to strike Plaintiff’s allegations in their

complaint. (Id. at 7–8.) Plaintiff claims that he need not show prejudice and that this is the

appropriate vehicle for challenging the applicability of § 1983, both generally and in this case. (Id.

at 8–12.) Plaintiff closes by saying he is willing to provide additional briefing on the qualified

immunity issue. (Id. at 12.)

II. RELEVANT STANDARD

Federal Rule of Civil Procedure 12(f) provides in relevant part: “The court may strike from

a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” Fed. R. Civ. P. 12(f). “The district court possesses considerable discretion in disposing of

a Rule 12(f) motion to strike redundant, impertinent, immaterial, or scandalous matter.” 5C Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (3d ed. 2020). See also

United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012) (The Fifth Circuit “review[s] a district

court's ruling on a motion to strike for abuse of discretion.”).

A party urging a motion to strike must meet certain requirements. “[M]otion[s] to strike

should be granted only when the pleading to be stricken has no possible relation to the

controversy[.]” Coney, 689 F.3d at 379 (quoting Augustus v. Bd. of Pub. Instruction of Escambia

Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)); see also Gilchrist v. Schlumberger Tech. Corp.,

321 F.R.D. 300, 302 (W.D. Tex. 2017) (citing Coney, 689 F.3d at 379). Additionally, “[s]triking

an affirmative defense is warranted if it cannot, as a matter of law, succeed under any

circumstance.” United States v. Renda, 709 F.3d 472, 479 (5th Cir. 2013) (citing Cambridge

Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir.2007) (citing Fed. R. Civ. P. 12(f))).

Further, the mover must show that the “presence [of the challenged allegations] in the

pleading throughout the proceeding will be prejudicial[.]” F.D.I.C. v. Niblo, 821 F. Supp. 441, 449

(N.D. Tex. 1993) (citing Augustus, 306 F.2d at 868); see also Glob. Adr, Inc. v. City of Hammond,

No. 03-457, 2003 WL 21146696, at *1 (E.D. La. May 15, 2003) (Engelhardt, J.) (citing Niblo, 821

F. Supp. at 449); Wright & Miller, supra, at § 1382 (“Thus, it is not surprising that a motion to

strike frequently has been denied when the court believes that no prejudice could result from the

challenged allegations, even though the offending matter literally is within one or more of the

categories set forth in Rule 12(f). This has been true, for example, if the pleadings will be withheld

from the jury or if the jury is carefully instructed as to the weight to be given the pleadings.”). As

Wright and Miller states:

[T]here appears to be general judicial agreement, as reflected in the

extensive case law on the subject, that they should be denied unless

the challenged allegations have no possible relation or logical

connection to the subject matter of the controversy and may cause

some form of significant prejudice to one or more of the parties to

the action.

Wright & Miller, supra, at § 1382 (emphasis added); see also Niblo, 821 F. Supp. at 449 (citing

Augustus, 306 F.2d at 868); Global Adr, 2003 WL 21146696, at *1 (citing Niblo, 821 F. Supp. at

449). But see Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 852 (E.D. La. 2011), on reconsideration

in part, No. 11-871, 2012 WL 1230736 (E.D. La. Apr. 12, 2012) (“A motion to strike should be

granted only when ‘the allegations are prejudicial to the defendant or immaterial to the lawsuit.’ ”

(quoting Harris v. USA Ins. Companies, No. 11-201, 2011 WL 3841869, at *1 (E.D. La. Aug. 30,

2011) (quoting Johnson v. Harvey, No. 96-3438, 1998 WL 596745, at *7 (E.D. La. 1998))). This

standard is a “heavy burden,” Gilchrist, 321 F.R.D. at 302, and a “high bar,” Global Adr, 2003

WL 21146696, at *1.

Looking at the specific grounds for striking, “ ‘[i]mmaterial’ matter is that which has no

essential or important relationship to the claim for relief or the defenses being pleaded, or a

statement of unnecessary particulars in connection with and descriptive of that which is material.”

Wright & Miller, supra, at § 1382. “Unnecessary jurisdictional allegations may be eliminated as

immaterial as may averments of evidentiary facts.” Id. “In addition, superfluous historical

allegations also have been subject to a motion to strike, although allegations of this type may be

permitted in a pleading if they are relevant to the claim for relief or provide useful background for

the parties and the court in the absence of any prejudice.” Id.

With respect to the procedural aspects of motions to strike, “[a] motion to strike must

comply with the requirement in Rule 7(b) that motions state with particularity the grounds therefor

and set forth the nature of relief or type of order sought.” Id. at § 1380. “All well-pleaded facts are

taken as admitted on a motion to strike but conclusions of law or conclusions drawn from the facts

do not have to be treated in that fashion by the district judge.” Id. “The district court also should

refrain from becoming enmeshed in the merits of the action or the legal sufficiency of the

pleadings, although this may be difficult to prevent when the relevance or materiality of the

challenged allegations is in issue on the motion.” Id. at § 1382. “If the court grants a motion to

strike redundant, immaterial, impertinent, or scandalous material, its order should delineate the

matter to be eliminated with some care so as to avoid the excision of unobjectionable allegations

and to prevent unnecessary controversy over the scope of the order.” Id. Thus, “[i]f the district

court determines that certain references in a pleading are prejudicial, only those references and not

the entire paragraphs containing them should be stricken.” Id. at § 1380.

“[T]he action of striking a pleading should be sparingly used by the court[.]” Coney, 689

F.3d at 379 (quoting Augustus, 306 F.2d at 868). “[S]triking a portion of a pleading is a drastic

remedy[.]” Niblo, 821 F. Supp. at 449 (citing Augustus, 306 F.2d at 868). Consequently, “motions

under Rule 12(f) are viewed with disfavor and are infrequently granted.” Niblo, 821 F. Supp. at

449 (citing Augustus, 306 F.2d at 868). “Any doubt about whether the challenged material is

redundant, immaterial, impertinent, or scandalous should be resolved in favor of the non-moving

party.” Wright & Miller, supra, at § 1382.

III. ANALYSIS

Having carefully considered the matter, the Court will deny the Motion. The Court does so

on multiple grounds.

First, as is demonstrated above and in other opinions by this Court, see Omega Hosp., LLC

v. United HealthCare Servs., Inc., No. 16-560, 2020 WL 7049857, at *12–14 (M.D. La. Dec. 1,

2020) (deGravelles, J.), this Court takes the position that prejudice is required to grant a motion to

strike, and Plaintiff’s extensive briefing is devoid of any real showing of that. For example,

Plaintiff’s contention that LSPO Defendants failed to provide specific detail in their invocation of

the Heck defense rings hollow when considering the fact that LPSO Defendants

contemporaneously filed a MTD specifying exactly the grounds which they contend support their

argument that the Heck defense applies. Likewise, even if “failure to state a claim” is not a proper

defense, it is difficult for the Court to see how the “presence [of this and the other challenged

defenses] in the pleading throughout the proceeding will be prejudicial[.]” Niblo, 821 F. Supp. at

449. On this ground alone, the instant Motion could be denied.

Second, even if the Court were to look past the prejudice issue, the Court would still deny

the Motion. The Court views with considerable skepticism Plaintiff’s position that LPSO

Defendants’ various affirmative defenses lack sufficient detail or are otherwise inadequate. Both

parties are represented by able counsel, and the Court concludes the defenses provide adequate

notice. For similar reasons, the Court cannot say that the complained-of affirmative defenses bear

“no possible relation to the controversy[.]” Coney, 689 F.3d at 379. For instance, comparative fault

is an entirely appropriate defense when negligence is pled, (Am. Comp. ¶¶ 261–267, Doc. 89), and

defenses of good faith conduct and third-party liability are also fair game under the facts of this

case, particularly given the allegations that another non-LPSO officer was involved in the

misconduct, (see id. ¶¶ 1–14, 18). Ultimately, the Court declines at this time to get embroiled in

the merits of the action; the question of whether a particular affirmative defense should or should

not bar recovery is best left for later in the proceeding through dispositive motions (like the MTD

and future motions for summary judgment). See Wright & Miller, supra, § 1382.

That said, the Court will reject at this time one of Plaintiff’s particular merit-based

challenges—the one attacking qualified immunity as a whole. Plaintiff invokes, inter alia, opinions

of Judge Willett criticizing the doctrine, but Judge Willett’s objections were also considered by

this Court in Abshire v. Livingston Parish, No. 22-548, 2023 WL 3589657 (M.D. La. May 22,

2023). There, this Court stated:

Nevertheless, this Court’s own feelings toward qualified immunity

are ultimately irrelevant; Plaintiffs’ arguments are best left for the

Supreme Court or the Fifth Circuit sitting en banc, not for a district

court. See Planned Parenthood of Greater Tex. Fam. Plan. &

Preventative Health Servs., Inc. v. Kauffman, 981 F.3d 347, 369 (5th

Cir. 2020) (“It is a well-settled Fifth Circuit rule of orderliness that

one panel of our court may not overturn another panel’s decision,

absent an intervening change in the law, such as by a statutory

amendment, or the Supreme Court, or our en banc court.”) (quoting

Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008)

(emphasis omitted)); see also [Conners v. Pohlmann, No. 15-101,

2021 WL 1172534, at *5 (E.D. La. Mar. 29, 2021) (Barbier, J.)]

(“declin[ing] Plaintiffs invitation to find that” the Supreme Court

overruled the doctrine of qualified immunity “implicitly”) (citing

Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 550 (5th

Cir. 2020) (“[L]ower courts may not ‘conclude [that] recent cases

have, by implication, overruled an earlier precedent.’ ”) (quoting

Agostini v. Felton, 521 U.S. 203, 237 (1997))). Or, as Judge Willett

said, “Today’s decision upholding qualified immunity is compelled

by our controlling precedent.” [Rogers v. Jarrett, 63 F.4th 971, 979

(5th Cir. 2023)] (Willett, J., concurring). Accordingly, the Court

rejects Plaintiffs’ attempt to invalidate the doctrine of qualified

immunity.

Id. at *10; see also Mallory v. Norfolk S. Ry. Co., 43 S. Ct. 2028, 2038 (2023) (“If a precedent of

this Court has direct application in a case, . . . a lower court should follow the case which directly

controls, leaving to this Court the prerogative of overruling its own decisions.” (cleaned up));

United States v. Alkheqani, 78 F.4th 707, 726 (5th Cir. 2023) (declining to find that recent Supreme

Court case abrogated prior cases and relying in part on Mallory). Thus, there is no basis for this

Court to invalidate qualified immunity as a viable defense.

In sum, Plaintiff has failed to meet the “high burden” of showing this “sparingly used,”

“drastic,” and “disfavored” remedy should be employed here. See Omega Hosp., 2020 WL

7049857, at *12–14 (citations omitted). While the Court appreciates Plaintiff counsels’ attempts

to zealously represent their client, the Motion as a whole strikes the Court as a hyper-technical

“gotcha” tactic that this Court has decried. See U.S. ex rel. Byrd v. Acadia Healthcare Co., Inc.,

No. 18-312, 2022 WL 879492, at *26 n.1 (M.D. La. Mar. 23, 2022) (deGravelles, J.).

The Court also reminds counsel that they are required by Federal Rule of Civil Procedure

1 to “construe[], administer[], and employ[]” the rules “to secure the just, speedy, and inexpensive

determination of every action and proceeding.” Fed. R. Civ. P. 1. The Court encourages the parties

to remember this obligation before filing further motions which, though not necessarily frivolous,

perhaps could be better resolved through a phone call or cooperation rather than fifty plus pages

of briefing.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion to Strike LPSO Defendants’ Affirmative Defenses

Pursuant to Fed. R. Civ. P. 12(f) (Doc. 105) filed by Plaintiff Alexander Clark is DENIED.

Signed in Baton Rouge, Louisiana, on July 29, 2024.

S

JUD GE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA