United States District Court, D. Connecticut
ORDER ON MOTION TO STRIKE
A. Bolden United States District Judge
Theresa D'Alosio, brought this action against Defendant,
EDAC Technologies Corporation (“EDAC”), asserting
claims under 29 U.S.C. § 634, the Age Discrimination in
Employment Act (“ADEA”). ECF No. 1. Pending
before the Court is EDAC's motion to strike paragraphs
eighteen, nineteen, and twenty of Ms. D'Alosio's
Complaint, which contain references to a severance agreement
that EDAC offered to Ms. D'Alosio when she was
terminated. ECF No. 23.
reasons that follow, the Court DENIES EDAC's motion to
19, 2016, Ms. D'Alosio filed her Complaint in this
action. ECF No. 1. Paragraphs eighteen, nineteen, and twenty
of her Complaint allege that certain EDAC employees pressured
her to sign a severance agreement upon the termination of her
employment at EDAC and describe the terms of the alleged
severance agreement. Compl. ¶¶ 18-20.
7, 2016, EDAC moved to strike paragraphs eighteen, nineteen,
and twenty of Ms. D'Alosio's Complaint. ECF No. 14.
On August 28, 2016, Ms. D'Alosio filed an objection to
this motion to strike. ECF No. 16.
September 7, 2016, EDAC moved to amend its earlier motion to
strike, ECF No. 22, and filed a corrected motion to strike,
ECF No. 23. EDAC had inadvertently omitted one page of their
original motion to strike when filing the motion
electronically and requested the Court's permission to
file a corrected motion. See Motion to Amend at 1,
ECF No. 22. The Court granted this motion to amend. ECF No.
29. EDAC also moved for leave to file a brief in support of
its motion to strike, having previously inadvertently
neglected to file its brief in support of the motion to
strike. ECF No. 24. The Court also granted EDAC's motion
for leave to file a brief, ECF No. 30, which EDAC had already
filed for the Court's review, ECF No. 25.
light of the corrected motion to strike, ECF No. 23, the
Court found that EDAC's previous motion to strike was
moot, ECF No. 31. Pending before the Court is EDAC's
corrected motion to strike. ECF No. 23.
Federal Rule of Civil Procedure 12(f), “[t]he court may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). The Second Circuit has
held that, when a court evaluates a Rule 12(f) motion,
“it is settled that the motion will be denied, unless
it can be shown that no evidence in support of the allegation
[that movant wishes to strike] would be admissible.”
Lipsky v. Commonwealth United Corp., 551 F.2d 887,
893 (2d Cir. 1976); see also Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988) (“When a complaint does
not comply with the requirement that it be short and plain,
the court has the power, on its own initiative or in response
to a motion by the defendant, to strike any portions that are
redundant or immaterial.” (citing Fed.R.Civ.P. 12(f)));
Hudson's Bay Fur Sales Canada, Inc. v.
Scheflin-Reich, Inc., No. 90-CIV-8026 (RLC), 1991 WL
60377, at *1 (S.D.N.Y. Apr. 8, 1991) (“A motion to
strike matter from a complaint as immaterial will be granted
only if no evidence in support of the allegation would be
admissible at trial.”).
to strike under Rule 12(f) “are generally disfavored
and will not be granted unless the matter asserted clearly
has no bearing on the issue in dispute.” Correction
Officers Benevolent Ass'n of Rockland Cty. v.
Kralik, 226 F.R.D. 175, 177 (S.D.N.Y. 2005); see
also Gierlinger v. Town of Brant, No. 13-CV-00370 AM,
2015 WL 3441125, at *1 (W.D.N.Y. May 28, 2015)
(“Because striking a [part] of a pleading is a drastic
remedy motions under Rule 12(f) are viewed with disfavor by
the federal courts and are infrequently granted.”
(internal quotation marks omitted)). Furthermore, “[t]o
the extent that Defendants' aim is to avoid unduly
inflaming and prejudicing the jury, ” the court may
take into account that “the Complaint will not be
submitted to the jury.” Schutz v. Ne. Mortg.
Corp., No. 3:05-CV-423(MRK), 2005 WL 1868888, at *1 (D.
Conn. July 27, 2005) (internal quotation marks omitted).
argues that paragraphs eighteen, nineteen, and twenty of Ms.
D'Alosio's Complaint should be struck because, by
referring to the severance agreement that EDAC allegedly
offered to Ms. D'Alosio upon the termination of her
employment at EDAC, these paragraphs are referring to
allegations that can only be proven by evidence that is
inadmissible under Rule 408 of the Federal Rules of Evidence.
See Def.'s Br. at 1-2, ECF No. Under Rule 408,
evidence of a party's (1) “furnishing, promising,
or offering . . . a valuable consideration in compromising or
attempting to compromise the claim” or (2)
“conduct or a statement made during compromise
negotiations about the claim” is “not admissible
. . . either to prove or disprove the validity or amount of a
disputed claim.” Fed.R.Evid. 408(a).
Second Circuit has held that “where a party is
represented by counsel, threatens litigation and has
initiated the first administrative steps in that litigation,
any offer made between attorneys will be presumed to be an
offer within the scope of Rule 408.” Pierce v. F.R.
Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992).
“In a discrimination case where the employee has
already been terminated and has threatened legal action,
offers of settlement of the dispute on condition of waiver
and release of the claim are inadmissible as evidence of
discrimination under [Rule 408], ” but the
“evidence is admissible is when, contemporaneously with
the notice of termination, the employee is asked to sign a
waiver and release of all claims in order to receive
severance pay.” Penny v. Winthrop-Univ. Hosp.,
883 F.Supp. 839, 846 (E.D.N.Y. 1995); see also Cassino v.
Reichhold Chemicals, Inc., 817 F.2d 1338, 1342-43 (9th
Cir. 1987) (holding in ADEA case that district court did not
abuse discretion by admitting evidence of severance agreement
where the “employment relationship is terminated and
the employer offers a contemporaneous severance pay package
in exchange for a release of all potential claims, including
claims for discriminatory acts that may have occurred at or
before the termination” and noting that “the
policy behind Rule 408 does not come into play” because
“Rule 408 should not be used to bar relevant evidence
concerning the circumstances of the termination itself”
and “[s]uch communications may also tend to be coercive
rather than conciliatory” and “courts should not
allow employers to compromise the underlying policies of the
ADEA by taking advantage of a superior bargaining position or
eighteen, nineteen, and twenty of Ms. D'Alosio's
Complaint refer to a “severance agreement” that
EDAC allegedly offered to Ms. D'Alosio during the April
9, 2015 meeting where EDAC allegedly informed her that her
employment was being summarily terminated. Compl.
¶¶ 16-20. At the time, Ms. D'Alosio had yet to
retain counsel, “threaten litigation, ” or
“initate the first administrative steps in that
litigation, ” Pierce, 955 F.2d at 827, based
on the ...