United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING PLAINTIFFS MOTION TO
E. Hudson United States District Judge.
MATTER is before the Court on Plaintiff Zoe Spencer's
("Plaintiff) Motion to Strike (ECF No. 38) and her
Memorandum in Support thereof (ECF No. 39), both filed on
November 11, 2016.
asks the Court to strike the Defendants' Reply in Support
of their Motion to Dismiss (ECF No. 36) in its entirety.
Plaintiff makes three arguments in support of her Motion: (1)
that the Reply Brief was filed beyond the applicable
deadline; (2) that the Reply Brief impermissibly cited and
relied upon a non-integral document; and (3) that the Reply
Brief impermissibly raised new arguments. (See
generally Mem. in Supp. of Mot. to Strike.)
recognizing that her first argument was based on a
misunderstanding of Federal Rule of Civil Procedure 6(d),
Plaintiff withdrew it on November 16, 2016. (ECF No. 41.)
However, Plaintiff continues to maintain that the Court
should strike the Defendants' Reply Brief in its entirety
based on either her second or third argument.
parties have filed memoranda supporting their respective
positions. The Court will dispense with oral argument because
the facts and legal contentions are adequately presented in
the materials before the Court, and oral argument would not
aid in the decisional process. E.D. Va. Local Civ. R. 7(J).
reasons stated herein, the Court finds Plaintiffs second and
third arguments as devoid of merit as her first. Therefore,
the Court will deny Plaintiffs Motion to Strike.
Second Amended Complaint ("S.A.C."), Plaintiff
alleges "that she was subjected to, and continues to be
subjected to, willful and knowing gender discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq.
("Title VII"), and the Equal Pay Act, 29 U.S.C.
§ 206(d), et seq. ("EPA"). Plaintiffs
claims themselves are not relevant to the present Motion.
Rather, the Court will focus its attention on the extent to
which Plaintiff referenced and relied upon the Virginia State
University Faculty Handbook ("VSU Faculty
Handbook") in her S.A.C. and in her Response to the
Defendants' Motion to Dismiss.
begins her factual allegations in her S.A.C. by stating that
"[a]ccording to the VSU Faculty Handbook ... faculty
salaries are set by the VSU Board of Visitors." (S.A.C.
¶ 31.) Plaintiff contends that "[Virginia State
University] is a teaching university and has a standard
employee work profile ("EWP") for all employees
classified as Collegiate/Instructional faculty. This EWP does
not differ depending on department or discipline, but is
consistent for all faculty of the same category."
(Id. ¶ 35.)
continues by citing the VSU Faculty Handbook to support her
assertion that "employees are divided into Classified
Personnel and General Faculty. Any type of faculty (Assistant
Professor, Associate Professor or Professor) is considered
General Faculty.... After faculty have been categorized,
their salary is based on their rank and experience as opposed
to their department." (Id. ¶ 36.)
Plaintiff then quotes the VSU Faculty Handbook to support her
characterization that there is no distinction in faculty
responsibilities or job descriptions between departments or
disciplines at Virginia State University: "Faculty
salaries shall be reviewed annually and shall be based upon
rank and experience." (Id. ¶ 37.)
Significantly, Plaintiff did not include a copy of the VSU
Faculty Handbook as an exhibit with her S.A.C.
their Motion to Dismiss, the Defendants argued that Plaintiff
failed to allege sufficient facts to show that she performed
the same job functions as the six male faculty members from
other departments that she named in her S.A.C. In her
Response, Plaintiff again cited to the VSU Faculty Handbook
and the EWP to support her claim that "there is no
difference or distinction in faculty responsibilities or job
descriptions between departments or disciplines." (Resp.
in Opp. to Mot. to Dismiss 2, 4, 13-14, 16-17.) Once more,
Plaintiff failed to include a copy of the VSU Faculty
Handbook as an exhibit to her brief.
result, the Defendants included a copy of the document, in
its entirety, with their Reply Brief. (Reply Br. 36-1.)
Plaintiff now objects to the Defendants' filing of the
document and their arguments regarding it. Consequently,
Plaintiff asks this Court to take the extraordinary step of
striking the entire Reply Brief from the record.
STANDARD OF REVIEW
Rule 12(f), a district court may "strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." Fed.R.Civ.P. 12(f).
A court's decision on such a motion is discretionary.
Renaissance Greeting Cards, Inc. v. Dollar Tree Stores,
Inc., 227 F.App'x 239, 246 (4th Cir. 2007). However,
"Rule 12(f) motions are generally viewed with disfavor
'because striking a portion of a pleading is a drastic
remedy and because it is often sought by the movant simply as
a dilatory tactic.'" Waste Mgmt. Holdings v.
Gilmore,252 F.3d 316, 347 (4th Cir. 2001) (quoting 5 A
A. Charles Alan Wright et al, Federal Practice &
Procedure § 1380, 647 (2d ed. 1990)). Stated