Hill v. Cray Research, Inc.

• Decision Date: 11 July 1991
• Docket Number: Civ. No. 90-0364-JB.
• Citation: 864 F. Supp. 1070
• Parties: William E. HILL, Plaintiff, v. CRAY RESEARCH, INC. and James D. Ledbetter, Defendants.
• Court: U.S. District Court — District of New Mexico

864 F. Supp. 1070

William E. HILL, Plaintiff, v. CRAY RESEARCH, INC. and James D. Ledbetter, Defendants.

Civ. No. 90-0364-JB.

United States District Court, D. New Mexico.

July 11, 1991.

COPYRIGHT MATERIAL OMITTED

Peter J. Adang, Jean M. Bannon, Stuart R. Butzier, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for plaintiff.

Scott K. Goldsmith, Popham, Haik, Schnobrich & Kaufman, Ltd., Minneapolis, MN, Duane C. Gilkey, Ogden M. Reid, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for defendants.

MEMORANDUM OPINION AND ORDER

BURCIAGA, Chief Judge.

THIS MATTER is before the Court on:

1) Plaintiff's Motion to Strike Paragraph 18 of the Answer pursuant to D.N.M.LR-Cv 7, D.N.M.LR-Cv 8.1 and Fed.R.Civ.P. 12(f);

2) Plaintiff's Motion to Dismiss the affirmative defenses of statute of limitations and absolute privilege or, in the alternative, to grant summary judgment in respect of the said defenses, and for sanctions under Fed.R.Civ.P. 11; and

3) Defendants' Motion for Partial Summary Judgment on the pleadings in respect of Count II of the Complaint pursuant to Fed.R.Civ.P. 12(c).

Having reviewed the pleadings, including the parties' memoranda submitted with these motions, and having considered the relevant law, the Court finds:

as to 1), that the Plaintiff's motion is not well taken and will be denied;

as to 2), that the Plaintiff's motion is well taken in part and will be granted in part;

as to 3), that the Defendants' motion is well taken and will be granted.

FACTUAL BACKGROUND.

In February 1982, Defendant Cray Research, Inc. (hereinafter "Cray"), a Minnesota corporation manufacturing, selling and servicing super computers, employed Plaintiff William Hill (hereinafter "Hill") until, on August 25, 1989, they gave him written notice of termination. Defendant James D. Ledbetter (hereinafter "Ledbetter") was, at the material times, District Engineering Manager for the Rocky Mountain District of Cray, including Albuquerque, New Mexico, and thereby held supervisory duties over Hill.

The employment relationship was not governed by an explicit contract of employment providing for a definite term, or for termination only for cause or after following any given procedure. Nor was there any consideration, beyond performance of his duties, flowing from Hill to Cray.

However, during initial training, Cray provided Hill with an employee handbook. In September 1986, when he was promoted to Cray's engineer-in-charge at Sandia National Laboratory in Albuquerque, Hill was provided by Cray with an additional document, entitled "Management Guidelines." Hill alleges that the contents of these documents gave rise to an implied contract of employment, providing that he would be terminated only for cause and only after being afforded the benefits of the procedures outlined therein.

Count I of his Complaint alleges that his termination was in breach of that implied contract and in breach of the covenant of good faith and fair dealing.

Count II, considered more fully as Part III of this Opinion at 14, infra, alleges that Defendants' actions in terminating Plaintiff constituted prima facie tort.

Count III alleges defamation against Ledbetter and/or other agents of Cray, for communications published both within and outside Cray that imputed to Hill unfitness to perform his duties and gave a false reason or reasons for his termination.

Count IV alleges wrongful discharge in that Hill's termination is said to have been the direct and proximate result of his candid discussion with a customer, a government defense contractor, about Cray's ability to meet its commitment to the customer, which candor, Hill claims, is authorized and encouraged by public policy.

I. PLAINTIFF'S MOTION TO STRIKE FOR NON-COMPLIANCE WITH D.N.M.LR-Cv 8.1

Plaintiff moves to strike Paragraph 18 of the Answer in which Defendants assert: "Plaintiff's Complaint fails to state a claim upon which relief can be granted."

Plaintiff argues that Defendants failed to request in writing that Paragraph 18 be treated as a motion as required by D.N.M.LR-Cv 8.1 and that it should therefore be stricken as an insufficient defense pursuant to Fed.R.Civ.P. 12(f).

While the Court finds that Defendants did not comply with the requirements of Local Rule 8.1, the Court in its sound discretion considers that that single instance of noncompliance does not warrant the drastic sanction of striking the defense set out in Paragraph 18.

Discussion.

"The court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). However, such motions are "viewed with disfavor and are rarely granted." Salazar v. Furr's, Inc., 629 F.Supp. 1403, 1411 (D.N.M. 1986). A motion to strike will be denied unless the allegations have no possible relation to the claims. Quigley v. General Motors Corp., 647 F.Supp. 656, 657 (D.Kan. 1986); see also, United States v. Shell Oil Co., 605 F.Supp. 1064, 1085 (D.Colo.1985). If there is any doubt as to whether to strike a matter in a pleading, the motion should be denied. Gilbreath v. Phillips Petroleum Co., 526 F.Supp. 657, 659 (W.D.Okla.1980).

Furthermore, in addressing a motion to strike based upon a violation of a local rule, this Court must construe the local rules in a manner consistent with the Federal Rules of Civil Procedure. See 28 U.S.C. § 2071; Fed. R.Civ.P. 83. The correct balance between the Federal Rules and the Local Rules was well expressed in McKinney v. Dole, 765 F.2d 1129, 1135 n. 12 (D.C.Cir.1985):

Given the mandate of Fed.R.Civ.P. 83 that District Court rules must be consistent with the Federal Rules ... this interpretation should not be taken as a departure from our prior decisions emphasizing that parties have a firm obligation to comply with the local rule's requirements which are aimed at giving notice ... to the District Court and to the opposing party.... We note simply that in interpreting the requirements and applications of the local rule the principles of the federal rules must ultimately prevail."

Local Rule 8.1 provides, in pertinent part:

If an answer ... raises or contains any of the seven enumerated defenses provided in Rule 12(b) of the Federal Rules of Civil Procedure, the party filing such pleading shall request in writing that such portion of the answer ... be treated as a motion and, thereafter, it shall be considered as a motion filed under D.N.M.LR-Cv 7 of these Rules.¹ Should a party fail to make such written request, such a defense may be treated as having been waived, except for jurisdiction defenses. emphasis added.

Although the word "shall" mandates that a written request be made in order to consider a 12(b) defense as a motion to dismiss, the rule does not prescribe when such request must be made, nor a specific sanction to be imposed for non-compliance. Rather, as the subjunctive "may" makes plain, the Court's response is left to its discretion. See Martinez v. Thrifty Drug & Discount Co., 593 F.2d 992, 993 (10th Cir.1979) ("The courts in construing Rule 83 have held that a broad discretion exists in applying rules to promote the efficiency in the court citation omitted.") emphasis added. See also United States v. Warren, 601 F.2d 471, 473 (9th Cir.1979) (district court's local rule, similar to D.N.M.LR-Cv 7.8, "does afford discretion in its application despite its mandatory language.")²

The purpose of Rule 8.1 is to encourage the early determination by motion of the threshold defenses enumerated in Fed. R.Civ.P. 12(b) in order "to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. The Local Rule seeks merely to shift the emphasis from Rule 12(b)'s provision of an opportunity to the pleader for these defenses to be made by pre-trial motion to a requirement that that be done.

Although the Court will not condone a cavalier attitude to the commands of the Local Rules, in this particular instance, the effect of requiring a request in writing to treat a 12(b) defense as a motion was substantially and expeditiously achieved by Defendants' July 9, 1990 Motion for Partial Judgment on the Pleadings. That plainly indicated that the 12(b)(6) defense of failure to state a claim was directed to Count II of the Complaint.³

Moreover, to treat an isolated instance of non-compliance with the Local Rules as waiving, automatically and in all circumstances, a defense of failure to state a claim, would itself be inconsistent with the Federal Rules.

Fed.R.Civ.P. 12(h)(2) provides in pertinent part:

A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

See also the Advisory Committee to the Federal Rules' Note to the 1966 Amendment to Fed.R.Civ.P. 12(h) (the "more substantial" defense of failure to state a claim is preserved from waiver for presentation in a motion at any time up to and including trial on the merits); Weatherhead v. Globe International, Inc., 832 F.2d 1226, 1228 (10th Cir.1987) ("... a defense of dismissal is waived only when presented after trial.") See also 2A Moore's Federal Practice ¶ 12.23 (2d Ed.1990); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1392 (2d Ed.1990).

The Court does not intend the Local Rules to be read as inconsistent with the Federal Rules, and, to the extent that they may be so interpreted, the Local Rules must yield. See Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir.1989); John v. Louisiana (Bd. of Trustees), 757 F.2d 698, 707 (5th Cir.1985); Ramsey v. Signal Delivery Service, Inc., 631 F.2d 1210 (5th Cir.1980); Arundar v. DeKalb County School Dist., 620 F.2d 493, 495 (5th Cir.1980); Woodham v. American Cystoscope Co., 335 F.2d 551, 556 (5th Cir.1964).

Conclusion.

Accordingly, Plaintiff's motion to strike Paragraph 18 of the Answer will be denied.

II. PLAIN...