Jansen v. Wekerle

• Decision Date: 14 February 2014
• Docket Number: No. 4:13CV00606 JLH,4:13CV00606 JLH
• Parties: BROOKS JANSEN PLAINTIFF v. MICHAEL WEKERLE DEFENDANT
• Court: U.S. District Court — Eastern District of Arkansas

BROOKS JANSEN PLAINTIFF v. MICHAEL WEKERLE DEFENDANT

No. 4:13CV00606 JLH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

Dated: February 14, 2014

OPINION AND ORDER

Brooks Jansen brings this action against Michael Wekerle, alleging claims for negligence, the tort of outrage, and punitive damages. Wekerle has filed a motion to strike Jansen's complaint and exhibit as well as a motion to dismiss Jansen's claim for the tort of outrage. For the reasons explained below, the motion to strike is granted in part and denied in part and the motion to dismiss is granted.

Brooks Jansen filed this action in the Circuit Court of Pulaski County, Arkansas, and Wekerle removed the action to this Court. Jansen alleges that on October 22, 2010, he was working as a valet at the Capitol Hotel in Little Rock, Arkansas, when Wekerle engaged in an extended drunken escapade that ranged from the lobby, to the hotel bar and grill, to Ashley's restaurant, to the men's restroom, and to Wekerle's room. Jansen alleges that Wekerle's actions included excessive consumption of alcohol, use of profanity, threats, insults, repeatedly blowing a stadium horn, offering beer to hotel employees, carrying a female guest through the hotel lobby and falling onto a couch with her, licking a woman's shoe and foot in her husband's absence, wrestling with a companion in a hallway, jumping up and down in a chair at an occupied table in the hotel bar and grill, and dropping his pants and underwear so as to expose his genitalia in the presence of other guests.

At some point, Wekerle unexpectedly grabbed, twisted, and pulled Jansen's left arm and then held on and bent over as if to flip Jansen over his shoulder. This action caused physical injury to Jansen's left shoulder and neck. Jansen reported his physical injury to the hotel and filed an employeeinjury report. Wekerle also made salacious comments to Jansen in front of and regarding two female guests. Document #2 at 16. Hotel security eventually evicted Wekerle from the hotel. The hotel drafted a security incident report that detailed Wekerle's conduct from approximately four p.m. to approximately nine p.m. Jansen attached the hotel security incident report to his complaint as Exhibit A. See Document #2.

Wekerle argues that much of Jansen's complaint and the security incident report is redundant, immaterial, impertinent, or scandalous. Consequently, Wekerle asks this Court to strike the complaint and the security incident report from the record pursuant to Federal Rule of Civil Procedure 12(f).

The Eighth Circuit has stated:

This court has rarely been called upon to interpret Rule 12(f), which states, in pertinent part, that: "Upon motion made by a party . . . or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Because the rule is stated in the permissive, however, it has always been understood that the district court enjoys "liberal discretion" thereunder. Thor Corp. v. Automatic Washer Co., 91 F. Supp. 829, 832 (D.C. Iowa 1950). See also, F.D.I.C. v. Niblo, 821 F. Supp. 441, 449 (N.D. Tex. 1993). Despite this broad discretion however, striking a party's pleadings is an extreme measure, and, as a result, we have previously held that "[m]otions to strike under Fed. R. Civ. P. 12(f) are viewed with disfavor and are infrequently granted." Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977) (citing 5 Wright & Miller, Federal Practice and Procedure: Civil § 1380 at 783 (1969)). See also, Resolution Trust Corp. v. Gibson, 829 F. Supp. 1103, 1106 (W.D. Mo. 1993); 2 James Wm. Moore et al., Moore's Federal Practice § 12.37[1] (3d ed. 2000) ("Courts disfavor the motion to strike, because it 'proposes a drastic remedy.'").

Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (alterations in Stanbury Law Firm).

[There] appears to be general judicial agreement, as reflected in the extensive case law on the subject, that [motions to strike] should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of thecontroversy and may cause some form of significant prejudice to one or more of the parties to the action. Any doubt about whether the challenged material is redundant, immaterial, impertinent, or scandalous should be resolved in favor of the non-moving party.

5C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1382 (3d ed. 2009) (footnotes omitted).

Jansen's complaint repeatedly characterizes Wekerle's conduct as a "drunken escapade" and three times lists a 17-point summary of Wekerle's conduct over the course of the entire evening. See Document #2 at 3-5, 7-10, and 11-14. These duplicate summaries are redundant not only because they are repeated twice but also because each count of the complaint already incorporates by reference all previous allegations. See id. at 5, 7, and 15. Consequently, all redundant characterizations of Wekerle's behavior as a "drunken escapade" and both redundant 17-point summaries of the allegations are struck from the complaint. Furthermore, the security incident report, which details Wekerle's conduct over the entire evening, is redundant and is struck from the record.

Jansen argues that he filed this action in the Circuit Court of Pulaski County, Arkansas, and that Arkansas Rule of Civil Procedure 8 requires fact pleading. Furthermore, he argues that the facts he alleges were necessary in order to plead his claim for negligence as well as the aggravating factors under Arkansas's punitive damages statute. That statute provides:

In order to recover punitive damages from a defendant, a plaintiff has the burden of proving that the defendant is liable for compensatory damages and that either or both of the following aggravating factors were present and related to the injury for which compensatory damages were awarded:

(1) The defendant knew or ought to have known, in light of the surrounding circumstances, that his or her conduct would naturally and probably result in injury or damage and that he or she continued the conduct with malice or in reckless disregard of the consequences, from which malice may be inferred; or(2) The defendant intentionally pursued a course of conduct for the purpose of causing injury or damage.

Ark. Code Ann. § 16-55-206. The Arkansas Supreme Court has stated,

In order to support an award of punitive damages, the evidence must indicate the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Negligence alone, however gross, is not a sufficient basis to justify the award of punitive damages. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Hodges v. Smith, 175 Ark. 101, 298 S.W. 1023 (1927). In St. Louis, I.M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224 (1919), we defined the prerequisites to an award of punitive damages as follows:

The terms 'wilfulness, or conscious indifference to consequences from which malice may be inferred,' as used in the decisions of this court, means such conduct in the face of discovered peril. In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred. (Italics supplied.)

According to AMI 2217, before a jury can impose punitive damages the evidence must show that the defendant "knew or ought to have known, in the light of surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct [with malice or] in reckless disregard of the consequences from which malice may be inferred."

Freeman v. Anderson, 279 Ark. 282, 286-87, 651 S.W.2d 450, 452 (1983) (alteration in Freeman).

The important inquiry is whether any of Jansen's factual allegations are material to the questions of (1) whether Wekerle knew or should have known that his conduct would naturally result in injury to Jansen¹ or (2) whether Wekerle continued his course in conscious indifference to the injurious consequences to Jansen.

In Freeman, the Arkansas Supreme Court affirmed the trial court's exclusion of evidence that the defendant fled the scene after causing an accident. Id. at 286, 651 S.W.2d at 452. The plaintiff offered the testimony to show that the defendant had a willful and wanton disregard for the plaintiff's welfare. Id. The plaintiff cited authority for the admission of evidence of hostile actions subsequent to the plaintiff's injury to prove the defendant's malice at the time of that injury. Id. But the court held that the excluded testimony—that the defendant did not stop after the defendant's truck changed lanes and caused another vehicle traveling the same direction to swerve across the center line into the path of the plaintiff's vehicle—contained nothing that tended to show conscious indifference on the part of the defendant. Id. at 287, 651 S.W.2d at 452.

As in Freeman, here Wekerle's conduct that occurred after his interaction with Jansen is not material to the questions of whether Wekerle knew or should have known that he was about to inflict injury on Jansen or whether he continued his course with a conscious indifference to the injurious consequences to Jansen. See id. While an argument might be made that those allegations "provide[] important context and background to [Jansen's] suit," Stanbury Law Firm, 221 F.3d at 1063, those allegations have no bearing on whether Wekerle was negligent or acted with malice in his interaction with Jansen. Although the complaint does not allege a time line of Wekerle's actions, allegations of events that occurred subsequent to...