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Carney v. Town of Weare

United States District Court, D. New Hampshire

January 26, 2016

James J. Carney Tracy Carney
Town of Weare, et al Opinion No. 2016 DNH 017


Landya McCafferty United States District Judge

James J. Carney and Tracy Carney bring suit against the Town of Weare, its elected officials, and several of its police officers, alleging state and federal claims arising from James’s employment as an officer in the Weare Police Department. Defendants have moved to dismiss the Carneys’ amended complaint for failure to comply with Federal Rules of Civil Procedure 8 and 12(f). Plaintiffs object.


James J. Carney worked as a police officer in various positions at the Weare Police Department (the “WPD”) from December 1992 through July 1, 2013, which is the date when Carney alleges the WPD constructively discharged him. In response to this alleged discharge and other events that occurred during his employment, Carney brings federal civil rights claims and state claims against 14 defendants, including WPD officers, Weare elected officials, and the Town of Weare. In addition, Tracy Carney, James’s wife, brings a claim against defendants for loss of consortium.

The Carneys’ claims are premised on three central allegations: (1) that defendants harmed Carney by propagating false statements about him; (2) that defendants sexually harassed Carney and retaliated against him for reporting that harassment; and (3) that defendants violated Carney’s constitutional rights and created an intolerable work environment for him during an investigation into his alleged misconduct.

The Carneys originally brought these allegations in a complaint filed in state court that was 71 pages long and contained 482 paragraphs. A subset of defendants removed the action to this court. Meanwhile, counsel for defendants asked the Carneys’ counsel to consider amending the original complaint because of its length, its inclusion of extraneous matter, and its references to personnel files and WPD internal investigations.

In response to defendants’ counsel’s request, the Carneys filed a First Amended Complaint (doc. 7) on September 24, 2015. The First Amended Complaint (referred to herein as the “Amended Complaint”) is 58 pages long[1] and contains 427 paragraphs. Defendants’ counsel again asked the Carneys’ counsel to consider revising the Amended Complaint because of its length and because it still contained several allegations that referenced information from internal investigations. The Carneys’ counsel denied that request. This motion followed.


Defendants move to dismiss the Amended Complaint for failure to comply with Federal Rule of Civil Procedure 8, which requires that a pleading set forth a “short and plain statement” of a claim for relief. Defendants also move to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(f) because, they contend, many of its allegations are immaterial or confidential. The Carneys object, arguing that the allegations in the Amended Complaint are relevant, and as such, neither the Amended Complaint nor any of its allegations is improper.

I. 12(f) Motion to Strike

Rule 12(f) provides that “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Defendants do not move to strike material from the Amended Complaint, but instead move to dismiss the entire complaint pursuant to Rule 12(f). Rule 12(f), however, “is neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint.” Bryan Corp. v. ChemWerth, Inc., 911 F.Supp.2d 103, 105 n.1 (D. Mass. 2012) (internal quotations omitted).[2] Accordingly, the court will treat the portion of defendants’ motion to dismiss that is based on Rule 12(f) as a motion to strike. Option Wireless, Ltd. v. OpenPeak, Inc., No. 12-80165-CIV, 2012 WL 6045936, at *2 n.4 (S.D. Fla. Dec. 5, 2012) (“[T]he Court may treat [an] improperly labeled motion to dismiss as a motion to strike if it chooses.”).

Courts have “considerable discretion” to strike material under Rule 12(f). Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988).[3] However, Rule 12(f) “motions are narrow in scope, disfavored in practice, and not calculated readily to invoke the court's discretion.” Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013) (quoting Boreri v. Fiat S.P.A., 763 F.2d 17, 23 (1st Cir. 1985)). That is because “striking a portion of a pleading is a drastic remedy and it is often sought by the movant simply as a dilatory or harassing tactic.” Id. (internal quotations omitted). As the moving party, defendants bear the burden of showing that the allegations should be struck under Rule 12(f). Berke v. Presstek, Inc., 188 F.R.D. 179, 180 (D.N.H. 1998).

Defendants make two separate arguments with respect to Rule 12(f). First, defendants cite a number of allegations that contain information they claim Carney learned while conducting WPD investigations. Defendants argue that these allegations are improper because they contain information that is confidential under N.H. Rev. Stat. Ann. § 516:36, II (“RSA 516:36, II”), which prohibits the admission in most civil actions of evidence related to internal police investigations. Second, defendants argue that the complaint is “rife with allegations” that are immaterial and designed to embarrass ...

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