333 F.R.D. 544 (D.N.M. 2019), Civ. 19-656 JAP/JHR, Jenkins v. City of Las Vegas

Docket Nº:Civ. 19-656 JAP/JHR
Citation:333 F.R.D. 544
Party Name:Kenneth JENKINS, Plaintiff, v. The CITY OF LAS VEGAS, et al., Defendants.
Attorney:Merit Bennett, The Bennett Firm, Santa Fe, NM, for Plaintiff. Jeffrey L. Baker, Renni Zifferblatt, The Baker Law Firm, Albuquerque, NM, for Defendants.
Case Date:October 23, 2019
Court:United States District Courts, 10th Circuit, District of New Mexico

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333 F.R.D. 544 (D.N.M. 2019)

Kenneth JENKINS, Plaintiff,


The CITY OF LAS VEGAS, et al., Defendants.

Civ. No. 19-656 JAP/JHR

United States District Court, D. New Mexico

October 23, 2019

Page 545

[Copyrighted Material Omitted]

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Merit Bennett, The Bennett Firm, Santa Fe, NM, for Plaintiff.

Jeffrey L. Baker, Renni Zifferblatt, The Baker Law Firm, Albuquerque, NM, for Defendants.



Plaintiff Kenneth Jenkins filed this lawsuit alleging, inter alia, that Defendants discriminated against him and/or retaliated against him in violation of federal and state law. Plaintiff’s FIRST AMENDED COMPLAINT ("FAC") (Doc. No. 3) provides the factual basis for these claims. But the FAC also contains certain distasteful statements by Plaintiff that Defendants contest. On August 16, 2019, Defendants moved to strike those statements and an exhibit from the FAC on the grounds that they are immaterial, impertinent, and scandalous under Federal Rule of Civil Procedure 12(f).[1] The Motion is fully briefed.2 For the following reasons,

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the Court will grant in part and deny in part Defendants’ Motion.


The underlying dispute arose out of Plaintiff’s employment with the City of Las Vegas, New Mexico. Plaintiff, an African-American male, was employed as a deputy-police chief during the period relevant to this lawsuit. FAC at 2. During his employment, Plaintiff claims to have been outspoken about the "inadequacy of the [police department’s] budget." Id. at 4. Plaintiff asserts that because of this "whistleblowing" or alternatively, because of his race, Defendants denied him advancement to positions he was qualified to hold. Id. Accordingly, Plaintiff brought the current action against Defendants.

On July 24, 2019, Plaintiff filed his FAC. Id. at 1. Shortly thereafter, Defendants moved to strike three of the statements contained in the FAC. Mot. at 2. For convenience and consistency, the Court sets forth the contested statements in their entirety below.

Defendants first contest FAC Paragraph 11, which states: Mayor Tonita Gurule-Giron took office in April of 2016. (On June 27, 2019, agents for the New Mexico Attorney General’s Office raided her Las Vegas, New Mexico, home to search for evidence of bid-rigging, bribery, kickbacks or other crimes. She is also now being investigated for voter fraud and elections tampering that date back to 2018.)

FAC at 3, ¶ 11 (emphasis in original).

Next, Defendants challenge FAC Paragraph 25:

In their response to Mr. Jenkins Charge of Discrimination, Defendants Gurule-Giron and Trujillo filed sworn affidavits with the EEOC alleging versions of what was said by Mr. Jenkins during meetings they had with him. Unknown to Gurule-Giron and Trujillo, Mr. Jenkins recorded those meetings and therefore has proof that the affidavits they filed with the EEOC, a federal agency, were patently false and therefore perjurious and will ultimately result in their criminal prosecution. These false affidavits confirm the Defendants’ illegal intent to discriminate and retaliate against Mr. Jenkins, for which all of the Defendants will be held to account for their joint and several liability.

Id. at 6, ¶ 25 (emphasis in original).

Finally, Defendants dispute the inclusion of FAC Paragraph 26:

On or about December of 2017, Mr. Jenkins and then Chief of Police Juan Montano met with Thad Porch, Special Auditor for the New Mexico State Auditor’s Office, to report Mayor Gurule-Giron’s suspicious attempt to get the City to award her construction-company-owner boyfriend, Marvin Salazar, an "emergency" contractor’s bid in the approximate amount of $96,000.00 to replace the carpet and wood-flooring at City Hall, which bid reeked of corruption, as there was no "emergency," the bid was patently excessive and Salazar was the Mayor’s boyfriend. As a result of this investigation, the bid of the Mayor’s boyfriend was ultimately rejected. It was this bid-rigging conspiracy with her boyfriend that led to law enforcement’s raid on her home on June 27, 2019. See Search Warrant attached hereto as Exhibit A. (Mr. Jenkins later also complained to Mr. Porch about the City’s [including the involvement of the Mayor] illegal alteration of Mr. Jenkins’ time sheets and failure to compensate him for his documented overtime.)

Id. at ¶ 26 (emphases and brackets in original).

Defendants also challenge the inclusion of Exhibit A attached to the FAC. Doc. No. 3-1. Exhibit A is a copy of a search warrant issued for Defendant Gurule-Giron’s residence. Id. at 2.

Legal Standard

Federal Rule of Civil Procedure ("Rule") 8(a) describes the requirements of a pleading. Specifically, "[a] pleading ... must

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contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). For those pleadings that go beyond the parameters established in Rule 8, Rule 12(f) provides that "[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) (emphasis added). While courts generally disfavor motions to strike, see Sundance Servs., Inc. v. Roach, 2011 WL 13285462, at *2 (D.N.M. June 2, 2011), the decision of whether to strike a portion of the pleadings is within the court’s discretion. See Fed.R.Civ.P. 12(f).

"Under Rule 12(f), matters are immaterial if ‘they have no possible bearing on the controversy.’ " Roach, 2011 WL 13285462, at *2 (quoting Lane v. Page, 272 F.R.D. 581, 587 (D.N.M. 2011) (overruled on other grounds)). Stated another way, "[i]mmaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being...

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