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L.C. v. Central Pennsylvania Youth Ballet

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


July 2, 2010

L.C., A MINOR, EVA CLARKE, AND JAMES CLARKE, INDIVIDUALLY AND AS NATURAL GUARDIANS OF L.C., PLAINTIFFS,
v.
CENTRAL PENNSYLVANIA YOUTH BALLET, ANNA MARIE RABASSI-DAVIS, KARL MOLL, MARY MOLL, AND KIRK MOLL, DEFENDANTS.

The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM AND ORDER

Pending before the Court are three motions in the above-captioned case. The first is a Motion to Dismiss the Amended Complaint, or, in the alternative, a Motion to Strike filed by Defendants Mary and Kirk Moll ("the Molls"). (Doc. 22) (the "Moll MTD"). The second is a Motion to Dismiss the Amended Complaint filed by Defendants Central Pennsylvania Youth Ballet ("CPYB") and Anna Marie Rabassi-Davis ("Rabassi-Davis") (collectively, "the Ballet Defendants"). (Doc. 25) (the "Ballet MTD"). The third is a Motion to Strike filed by Defendant Karl Moll. (Doc. 27) (the "Motion to Strike"). For the following reasons, we shall grant in part and deny in part the Moll MTD and the Ballet MTD, and we shall grant the Motion to Strike in its entirety.

I. PROCEDURAL HISTORY

Plaintiffs L.C., Eva Clarke, and James Clarke ("Plaintiffs" or "the Clarkes") initiated the above-captioned action by filing a complaint on October 26, 2009. (Doc. 1). On February 2, 2010, Plaintiffs filed an amended complaint. (Doc. 21). On that same date, the Moll MTD was filed. (Doc. 22). On February 5, 2010, both the Ballet MTD and the Motion to Strike were filed. (Docs. 25, 27). Both briefs in support of and brief in opposition to these motions have been filed. (See Docs. 23, 26, 28, 30, 31, 32). While reply briefs have not been filed in connection with any of the aforementioned motions, the time in which to do so has long since expired. Accordingly, the motions are ripe for disposition.

II. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S.Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 120 S.Ct. At 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the 'nub' of the . . . complaint -- the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.

However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.

III. FACTUAL BACKGROUND*fn1

At all relevant times, L.C. and Karl Moll were students at CPYB. (Amend. Compl. ¶¶ 2, 6). On December 8, 2007, Karl Moll allegedly sexually assaulted L.C. during a ballet rehearsal at the Whitaker Center in Harrisburg, Pennsylvania. (Id. ¶ 20). Plaintiffs allege that as a result of this conduct Karl Moll entered a consent decree in Cumberland County Juvenile Court to criminal indecent assault and aggravated indecent assault. (Id. ¶ 21). On or about December 9, 2007, Eva Clarke, mother of L.C., allegedly reported the sexual assault to Rabassi-Davis, a faculty member and backstage manager employed by CPYB. (Id. ¶ 22). Plaintiffs allege that on December 12, 2007 Rabassi-Davis, with the consent of CPYB, proceeded to tape record an interview with L.C. concerning the aforementioned sexual assault without his parents' knowledge. (Id. ¶ 23, 24). On that same day, Rabassi-Davis purportedly disclosed the contents of the recording to Kirk Moll and others without the consent of L.C. or his parents. (Id. ¶ 25).*fn2

On December 14, 2007, Plaintiffs allege that CPYB failed to prevent Karl Moll from entering the same dressing room as L.C. (Id. ¶ 27). Plaintiffs aver that on December 17, 2007, L.C. was again interviewed and tape recorded. (Id. ¶¶ 29, 30).*fn3 During this interview, L.C. was allegedly informed that he should not have notified his parents about the alleged sexual assault. (Id. ¶ 32). Plaintiffs believe that this recording was also played for others. (Id. ¶ 34).

These allegations form the basis of Plaintiffs' 14-count amended complaint. The claims asserted against Rabassi-Davis and CPYB collectively include: (i) Count I-- intentional interception of the oral communication of December 12, 2007, in violation of 18 U.S.C. § 2511; (ii) Count II-- intentional interception of the oral communication of December 17, 2007, in violation of 18 U.S.C. § 2511; (iii) Count III-- intentional disclosure of the oral communication of December 12, 2007, in violation of 18 U.S.C. § 2511; (iv) Count IV-- intentional disclosure of the oral communication of December 17, 2007, in violation of 18 U.S.C. § 2511; (v) Count V-- intentional interception of the oral communication of December 12, 2007, in violation of 18 Pa.C.S. § 5703; (vi) Count VI-- intentional interception of the oral communication of December 17, 2007, in violation of 18 Pa.C.S. § 5703; (vii) Count VII-- intentional disclosure of the oral communication of December 12, 2007, in violation of 18 Pa.C.S. § 5703; (viii) Count VIII-- intentional disclosure of the oral communication of December 17, 2007, in violation of 18 Pa.C.S. § 5703; and (ix) Count XII-- civil conspiracy to illegally tape record and publish the communications of December 12 and 17, 2007. (See Amend. Compl. ¶¶ 39-60, 79-80).*fn4 Counts XI (negligence in supervising student behavior) and XIII (breach of contract)*fn5 are lodged against CPYB alone. (Id. ¶¶ 72-78, 81-87).*fn6

The counts asserted against Karl Moll include: (i) Count IX-- assault and battery in connection with the aforementioned sexual assault; and (ii) Count XIV-- negligence/gross negligence in connection with the aforementioned sexual assault. (Id. ¶¶ 61-63, 88-94). Plaintiffs have asserted Count X (common law negligence)*fn7 and Count XII (conspiracy to illegally tape record and publish the communications of December 12 and 17, 2007)*fn8 against his parents. (Id. ¶¶ 64-71, 79-80).*fn9

The afore-referenced allegations are the subjects of the Moll MTD, the Ballet MTD, and the Motion to Strike, which we shall address in turn.

IV. DISCUSSION

A. The Ballet MTD

The Ballet MTD seeks the following relief: (i) dismissal of the federal wiretapping claims in Counts I-IV; (ii) dismissal of the punitive damage prayer contained in Count XI; (iii) dismissal of the prayer for attorney's fees; and (iv) dismissal of the breach of contract claim in Count XIII. We shall discuss these subjects seriatim.

i. Federal Wiretapping Claims (Counts I-IV)

The federal wiretapping statute applies to anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . ." 18 U.S.C. § 2511(1)(a). Further, the statute also applies to anyone who " intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection." Id. § 2511(1)(c).*fn10 However, the statute also provides that . . . it shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.

Id. § 2511(2)(d) (emphasis added). The Ballet Defendants contend that they cannot be held liable under the federal wiretapping statute because they are a non-governmental actor that was a party to the recorded communication and gave consent to the interception of the same. We disagree.

Ballet Defendants' argument ignores the qualification contained in the language of § 2511(2)(d). That provision clearly states that if one of the communicants consents to interception of the communication, such conduct is not prohibited unless the interception was "for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state." Id. In the case at bar, Plaintiffs have clearly averred that the interception of the communications on December 12 and 17, 2007, was executed with the express purpose of disclosing the contents of the communication to Defendant Kirk Moll and others. (See Amend. Compl. ¶¶ 41, 44). Since such disclosure is proscribed by § 2511(1)(c), the interception of the aforementioned communications was done for the purpose of committing an act in violation of federal law. Accordingly, the language contained in § 2511(2)(d) does not remove Ballet Defendants' conduct from the realm of illegality, meaning that Plaintiffs may properly maintain a civil cause of action against them pursuant to § 2520. Consequently, we shall deny the Ballet MTD to this extent.

ii. Prayer for Punitive Damages (Count XI)

It is well-established that a showing of mere negligence, or even gross negligence, is not sufficient to imposed punitive damages; rather, a plaintiff must show that the defendant's acts amounted to intentional, willful, wanton, or reckless conduct in order to warrant the imposition of punitive damages. See Doe v. Wyoming Valley Health Care Sys., 987 A.2d 758, 768-69 (Pa. Super. Ct. 2009).

With this in mind, we note that, as its heading suggests, Count XI contains a claim for ordinary negligence asserted against CPYB. Moreover, we are not aware of any allegation in the amended complaint indicating that CPYB was intentional, willful, wanton, or reckless in supervising its students in the allegedly insufficient manner in which it did. Accordingly, we do not believe that Plaintiffs have sufficiently lodged allegations that would entitle them to punitive damages in connection with Count XI. See Twombly, 550 U.S. at 555 (citations omitted) (permitting dismissal of a complaint that does not contain a short and plain statement of the claim showing that the pleader is entitled to the requested relief). Consequently, we shall grant the Ballet MTD to this extent.

iii. Prayer for Attorney's Fees

In their opposition brief, Plaintiffs concede the issue of attorney's fees. (Br. Opp., Doc. 30, p. 6). In light of this concession, we shall grant the Ballet MTD to this extent.

iv. Breach of Contract Claim (Count XIII)

As aforestated, Plaintiffs' breach of contract claim is premised upon the provisions of the CPYB Handbook, which states, in pertinent part: "Students are expected to behave respectfully and courteously at all times toward CPYB faculty and staff, as well as to each other." (Amend. Compl. ¶ 38). Plaintiffs assert that since they were required to sign a document evidencing that they read and understood the contents of the Handbook, the terms thereof either expressly or impliedly became part of the contract between the parties, and that CPYB breached those terms by allowing Karl Moll to sexually assault L.C. (Id. ¶ 83). Further, Plaintiffs assert that CPYB breached its duty to protect its students from harm. (Id. ¶¶ 84-85).

Initially, we note that the "fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties." Robertson v. Drexel Univ., 991 A.2d 315, 318 (Pa. Super. Ct. 2010) (citations omitted). "The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself." Id. (citations omitted). "Courts do not assume that contract's language was chosen carelessly, nor do they assume that the parties were ignorant of the meaning of the language they employed." Id. (citations omitted). In the case at bar, Plaintiffs assert that the Handbook provides the written terms and conditions upon which the contract was based. (Amend. Compl. ¶ 83). However, even if this were true, a conclusion that we expressly do not reach, Plaintiffs have failed to allege that CPYB breached the terms of the purported agreement. Indeed, the language of the provision quoted by Plaintiffs does not obligate CPYB to ensure that their students act respectfully towards others, nor does it obligate it to ensure their students' safety. (See Amend. Compl. ¶ 38). In fact, the provision does not obligate CPYB to do anything; rather, it is merely a statement of expectation with regard to how its students will behave. (See id.). Accordingly, Plaintiffs have failed to adequately allege that they are entitled to relief on the basis of CPYB's alleged breach of the aforementioned provision.

Plaintiffs' breach of contract claim must also fail to the extent that it is based upon CPYB's alleged duty to ensure the safety of its students. Indeed, the amended complaint is completely bereft of any allegations that such a duty emanated from a written or oral agreement between the parties.*fn11 Therefore, we shall grant the Ballet MTD to this extent.

In summary, we shall grant the Ballet MTD insofar as it relates to Plaintiffs' punitive damage request in Count XI, their request for attorney's fees, and the breach of contract claim in Count XIII. We will deny the motion to the extent in relates to the federal wiretapping claims in Counts I-IV.

B. The Moll MTD

The Moll MTD contains three arguments: (i) that Plaintiffs have failed to state a claim for negligence in Count X; (ii) that Plaintiffs have failed to state a civil conspiracy claim in Count XII; (iii) that, in the alternative to an outright dismissal of the above claims, paragraph 21 of the amended complaint should be stricken. We address these arguments in turn.

i. Negligence Claim (Count X)

The elements of a negligence cause of action include: "(i) a duty or obligation recognized by the law requiring a defendant to conform to a certain standard of conduct for the protection of others against unreasonable risk; (ii) defendant's failure to conform to the standard required; (iii) a causal connection between the conduct and the resulting injury; and (iv) actual loss or damage resulting to the plaintiff." R.W. & C.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005) (citations omitted). The Molls assert that they had no legal duty to monitor their son's medication regimen; in other words, they contend that they had no legal duty to guarantee that their minor son was properly medicated. (Br. Supp., Doc. 23, pp. 7-8). We disagree.

The Second Restatement of Torts provides:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.

RESTATEMENT (SECOND) OF TORTS § 316.*fn12

The principles expressed in this provision are consistent with Pennsylvania case law. See K.H. v. J.R., 826 A.2d 863, 876 (Pa. 2003) (Newman, J., concurring) (citing Condel v. Savo, 29 A.2d 51 (Pa. 1944)); see also J.H. ex rel Hoffman v. Pellak, 764 A.2d 64 68, 69 (Pa. Super. 2000). Plaintiffs have alleged that the Molls knew or should have known that their son had a propensity to assault other children and that he was prescribed medication to control a mental health condition. (Amend. Compl. ¶¶ 65, 66). A liberal reading of the amended complaint reveals Plaintiffs' contention that the aforementioned medication was designed to control Karl Moll's assaultive behavior. (See id. ¶¶ 64-71). It is beyond doubt that these allegations establish that the Molls knew of the necessity of monitoring their son's compliance with his prescribed medication regimen. Further, it is reasonable to infer that the Molls had the ability and opportunity to engage in such monitoring, since they lived in the same house as their minor son. (Id. ¶¶ 6-8). Thus, we believe that the Molls had a duty to oversee their son's medication regimen pursuant to pursuant the dictates of the Restatement of Torts and Pennsylvania case law.*fn13 Plaintiffs allege that this duty was breached, in that the Molls not only failed to monitor their son's medication regimen, but that they also failed to have medication available for him. (Id. ¶ 67). Accordingly, we believe that Plaintiffs have adequately alleged a legally enforceable duty and a breach thereof in connection with the negligence action contained in Count X. Since the Molls do not interpose any additional arguments indicating that the Plaintiffs' negligence claim is deficient, we shall deny the Moll MTD insofar as it is related to that claim.

At this juncture, we address the Molls' argument that they cannot be held liable for punitive damages in relation to the aforementioned negligence claim. As stated above, a showing of mere negligence, or even gross negligence, is not sufficient to imposed punitive damages; rather, a plaintiff must show that the defendant's acts amounted to intentional, willful, wanton, or reckless conduct in order to warrant the imposition of punitive damages. See Wyoming Valley Health, 987 A.2d at 768-69. While Count X is cast as a negligence cause of action, it is based upon allegations that, despite knowing that their son needed medication to treat a mental illness that manifested itself in aggressive behavior, the Molls either failed to procure their son's medication or failed to supervise his ingestion of the same, or both. We believe that these averments sufficiently amount to an allegation that the Molls' conduct was intentional, willful, wanton, or reckless. Therefore, we shall deny the Moll MTD insofar as it relates to the punitive damage request contained in Count X.

Finally, we note that the Molls contend that they cannot be held liable for attorney's fees pursuant to Count X. Since Plaintiffs concede this point, (Br. Opp., Doc. 31, p. 7), we shall grant the Moll MTD in this regard.

ii. Civil Conspiracy Claim (Count XII)

"The essential elements of a claim for civil conspiracy are as follows: (i) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (ii) an overt act done in pursuance of the common purpose, and (iii) actual legal damage." Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008) (citations omitted). "Proof of malice, i.e., an intent to injure, is an essential part of a conspiracy cause of action; this unlawful intent must also be without justification." Gross v. Proctor & Gamble Paper Prods., 866 A.2d 437, 441 (Pa. Super. Ct. 2005). The Molls argue that Count XII must be dismissed because it is entirely bereft of particularized allegations indicating the number of individuals involved in the conspiracy, the period of the conspiracy, the object of the conspiracy, and the actions taken in furtherance of the conspiracy.

With regard to the time and duration arguments, we note that Plaintiffs are not required to set forth a time and place for a conspiratorial meeting or a date upon which the conspiracy began. See Baker v. Rangos, 324 A.2d 498 (Pa. Super Ct. 1974).*fn14 Further, a reading of the amended complaint indicates that Plaintiffs have alleged that Rassabi-Davis and the Molls were participants in a conspiracy to violate L.C.'s federal rights by tape recording Rassabi-Davis' interview of him and disclosing the contents of the recording to Kirk Moll without his consent or that of his parents. (Amend. Compl. Count XII). These averments certainly establish that Plaintiffs have in fact alleged identities of the co-conspirators and the object of the conspiracy. Further, it is clear that Plaintiffs have also alleged the act in furtherance of the conspiracy, i.e., the actual interception of the aforementioned interview and subsequent disclosure thereof to Kirk Moll. (See id.¶¶ 20-38).*fn15

Finally, Plaintiffs have claimed that the actual legal damage occasioned by the conspiracy is the purported violation of the rights secured to L.C. by federal and state wiretapping laws. (See id. ¶¶ 80). Accordingly, we believe that the Plaintiffs have sufficiently pled a their claim for civil conspiracy. We will therefore deny the Moll MTD to this extent.

Finally, the Molls argue that their conduct does not justify the imposition of punitive damages. As aforestated, a plaintiff must show that the defendant's acts amounted to intentional, willful, wanton, or reckless conduct in order to warrant the imposition of punitive damages. Since Plaintiffs have alleged that the conspiracy was designed to violate the rights guaranteed to L.C. by federal and state law, we believe that they have lodged allegations from which, if proven, a reasonable jury could infer that the Molls' conduct was "intentional, willful, wanton, or reckless." Consequently, we shall deny the Moll MTD to this extent and permit the Plaintiffs to proceed to discovery on this issue.

iii. Paragraph 21 of the Amended Complaint

Lastly, the Molls argue that paragraph 21 of the amended complaint must be stricken pursuant to Federal Rule of Civil Procedure 12(f), which permits the court to strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The aforementioned paragraph contains Plaintiffs' allegation that Karl Moll entered into a consent decree in Cumberland County Juvenile Court as a result of the alleged sexual assault that forms the basis of the instant case. (See Amend. Compl. ¶ 21).

Pennsylvania courts have held that "[a] consent decree is not a legal determination by the court of the matters in controversy but rather is merely an agreement between the parties, that is, a contract binding them to the settlement's terms." See Pennsylvania Higher Educ. Assistance Agency v. Lal, 714 A.2d 1116, 1118 (Pa. Commw. Ct. 1998); see also Weeast v. Borough of Wind Gap, 621 A.2d 1074, 1076 (Pa. Commw. Ct. 1993); Pennsylvania v. U.S. Steel Corp., 325 A.2d 324, 328 (Pa. Commw. Ct. 1974).*fn16 Consequently, we believe that the consent decrees are akin to a plea of nolo contendere in that neither results in an adjudication of guilt. See, e.g., Commonwealth v. Smith, 30 A.2d 339, 346 (Pa. Super. Ct. 1943) (When a plea of nolo contendere "is tendered and accepted it is not the province of the judge to adjudge the defendant guilty or not guilty.") (citations and internal quotations omitted); see also Lipisky v.Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976) ("[B]oth consent decrees and pleas of nolo contendere are not true adjudications of the underlying issues.") (addressing consent decrees made pursuant to the Clayton Act, 15 U.S.C. §§12-27).

It is well established that pleas of nolo contendere are inadmissible pursuant to Federal Rule of Civil Procedure 410(2). See Fed. R. Civ. P. 410(2) ("Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: * * * (2) a plea of nolo contendere . . .).

Accordingly, we do not believe that evidence of Karl Moll's consent decree in Cumberland County Juvenile Court would be admissible in the present action pursuant to F.R.E. 410(2).

Further, even if F.R.E. 410(2) was inapplicable in this case because nolo contendere pleas were not sufficiently analogous to consent decrees, the consent decree at issue would not be admissible for the following reasons. As aforestated, consent decrees are not adjudications of guilt. Therefore, the consent decree entered into by Karl Moll cannot materially substantiate the claims Plaintiffs have asserted against him in the action at bar, meaning that it is entirely irrelevant to those claims. See Fed. R. Evid. 401 ("'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."); Fed. R. Evid. 402 (" . . . . Evidence which is not relevant is not admissible."). Consequently, and contrary to Plaintiffs' contention, the jury is not "entitled" to know about the consent decree because it is irrelevant and impertinent and therefore inadmissible pursuant to F.R.E. 401 and 402. Accordingly, we believe that the paragraph 21 of the amended complaint should be stricken therefrom pursuant to Federal Rule of Civil Procedure 12(f). We will grant the Moll MTD to this extent.

In summary, we shall deny the Moll MTD insofar as it seeks dismissal of Plaintiffs' negligence claim in Count X, their civil conspiracy claim in Count XII, and their request for punitive damages in connection with both of those claims. We grant the Moll MTD insofar as it seeks dismissal of Plaintiffs' request for attorney's fees in connection with Count X, and to the extent that it seeks to strike paragraph 21 from the amended complaint.

C. The Motion to Strike

The Motion to Strike seeks to strike paragraphs 21 and 63 from the amended complaint pursuant to Federal Rule of Civil Procedure 12(f).*fn17 As discussed above, we have already determined that paragraph 21 should be stricken as immaterial and impertinent. Since paragraph 63 contains an allegation identical to that in paragraph 21, we believe it should likewise be stricken for the aforestated reasons. Accordingly, we shall grant the Motion to Strike in its entirety.

NOW, THEREFORE IT IS HEREBY ORDERED THAT:

1. The Motion to Dismiss filed by Defendants CPYB and Rassabi-Davis (Doc. 25) is GRANTED IN PART and DENIED IN PART to the following extent:

a. The motion is GRANTED insofar is relates to Plaintiff's punitive damage request in Count XI, their breach of contract claim in Count XIII, and their request for attorney's fees.

b. The motion is DENIED to the extent it relates to the federal wiretapping claims in Counts I-IV.

2. The Motion to Dismiss the Amended Complaint, or, in the alternative, Motion to Strike filed by Defendants Kirk and Mary Moll (Doc. 22) is GRANTED IN PART and DENIED IN PART to the following extent:

a. The motion is GRANTED insofar as it relates to Plaintiffs' request for attorney's fees in connection with Count X, and their request to strike paragraph 21 from the amended complaint.

b. The motion is DENIEDinsofar as it relates to Plaintiffs' negligence claim in Count X, their civil conspiracy claim in Count XII, and their request for punitive damages in connection with both of those claims.

3. The Motion to Strike filed by Defendant Karl Moll (Doc. 27) is GRANTED in it entirety. Paragraphs 21 and 63 are STRICKEN from the amended complaint. The parties are forbidden from relying on the same throughout the pendency of the matter at bar.

John E. Jones III United Stated District Judge


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