United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Lee Koch and Plaintiff Lorrie Biggs (together, Plaintiffs)
filed independent actions alleging violations of 42 U.S.C.
§ 1983 against their former employer, Defendant City of
St. Paul, Oregon (“City”), and Kimball Wallis and
Laura Schroeder (together, Defendants), alleging violations
of the First Amendment of the United States Constitution, and
various violations of state law whistleblower and common law
claims. Defendants also moved to strike certain allegations
from the pleadings pursuant to Federal Rule of Civil
Procedure 12(f)(2) (“Rule 12(f)(2)”). Because the
Court recommended dismissing Biggs' Amended Complaint in
a separate Findings and Recommendation, Defendants'
motion to strike is DENIED without prejudice
as moot as to Biggs. As to
Koch, Defendants' motion to strike is
DENIED without prejudice to raise privilege
issues at a later stage of the litigation.
12(f) of the Federal Rules of Civil Procedure permits a
district court to “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent or scandalous matter.” Fed.R.Civ.P. 12(f).
Rule 12(f) serves to help “avoid the expenditure of
time and money that must arise from litigating spurious
issues by dispensing with those issues prior to trial.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010) (quoting Fantasy, Inc. v.
Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993,
rev'd on other grounds by Fogerty v. Fantasy,
Inc., 510 U.S. 517 (1994)). However, motions to strike
are generally disfavored and infrequently granted. Legal
Aid Servs of Or. V. Legal Servs. Corp., 561 F.Supp.2d
1187, 1189 (D. Or. 2008). “A motion to strike should
not be granted unless it is clear that the matter to be
stricken could have no possible bearing on the subject matter
of the litigation.” Contreras, ex rel Contreras v.
County of Glen, 725 F.Supp.2d 1157, 1159 (E.D. Cal.
2010) (quoting Bassett v. Ruggles et al., 2009 WL
2982895 at *24 (E.D.Cal. Sept. 14, 2009). Motions to strike
pleadings are non-dispositive and may be ruled upon by a
magistrate judge by order. E.g., Agan v. Katzman
& Korr, P.A., 328 F.Supp.2d 1363, 1365 n. 1 (S.D.
Relevant Procedural History
response to Plaintiffs' initial complaints, Schroeder
filed Rule 12(f) motions to strike.On September 4, 2018, after
Plaintiffs were ordered to file amended complaints, those
motions to strike were denied as moot and without
prejudice. To the extent Defendants attempt to revive
and reincorporate the motions and briefing filed in response
to Plaintiffs' initial complaints and denied as moot, the
Court does not consider these. See Local Rule 7-1(b)
(“Motions may not be combined with any response, reply,
or other pleading.”).
argue that the Plaintiffs' Amended Complaints contain
numerous statements that are subject to the attorney-client
privilege and which should, therefore, be stricken pursuant
to Rule 12(f)(2). Defendants argue that Plaintiffs do not
have the authority to disclose protected communications
between Schroeder and Plaintiffs, or between Schroeder and
other City employees or officials. Plaintiffs argue that: (1)
Schroeder does not have standing to assert attorney-client
privilege on behalf of City; (2) attorney-client privilege
does not apply to communications made in furtherance of
committing a crime, tort, or fraud, and the facts alleged
show that City used its attorney to commit a tort; (3)
statements regarding allegations of over-billing or that are
related to excessive or unauthorized attorney fees are not
privileged communications; and (4) statements made by
Schroeder while acting in a human resources or employee
management, or investigator capacity are not subject to the
attorney-client privilege applies where legal advice of any
kind is sought from an attorney acting in her professional
capacity as a legal advisor and the communications relating
to that purpose are made in confidence with the client
insisting on permanent protection from disclosure. Matter
of Fischel, 557 F.2d 209, 211 (9th Cir. 1977).
Communications made by an entity's employees to the
entity's counsel (acting as the entity counsel) at the
direction of superiors in order to secure legal advice from
counsel are protected. See Upjohn Co. v. United
States, 449 U.S. 383 (1981). The privilege is
strictly construed. United States v. Martin, 278
F.3d 988, 999 (9th Cir. 2002). Courts employ an eight-part
test to determine whether information is protected by the
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by
the legal adviser, (8) unless the protection be waived.
United States v. Ruehle, 583 F.3d 600, 607 (9th Cir.
2009). Communications that enable or aid the client to commit
a tort or crime, regardless of the attorney's good faith,
are not protected. In re Heuwetter, 584
F.Supp. 119, 127 (S.D.N.Y. 1984). Likewise, communications
that trigger retaliatory conduct are excepted from the
privilege. See Becker v. Willamette Cmty. Bank, 2014 WL
2949334, at *2 (D. Or. June 30, 2014) (application of the
privilege would prohibit plaintiff from pursuing a
retaliation claim because she would be completely barred from
proving the conduct or speech that allegedly triggered the
Court assumes that an attorney may assert the privilege of
confidentiality on behalf of her client. See Or.
Rev. State. § 40.225(3); United States v.
Judson, 322 F.2d 460, 467 (9th Cir. 1963). Regardless,
in the motion now pending before this court, all Defendants,
including the privilege holder, City, appear to be asserting
the privilege. This Court also assumes that statements
regarding attorney fees and billing are not privileged unless
the statements included privileged information beyond the
general nature of the work, time spent, amount billed, and
fee arrangement. See Clarke v. American Commerce Nat.
Bank, 974 F.2d 127 (9th Cir. 1992).
this Court has recommended that certain claims in Koch's
Amended Complaint should survive Defendants' motion to
dismiss, while other should not survive, the Court has
carefully reviewed surviving claims to determine whether the
claims relied upon any attorney-client privileged
communications. The Court finds that the following alleged
communications do not fall under the ...