UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MINOR I. DOE, through parent

PARENT I. DOE; MINOR II. DOE,
Through parent PARENT II. DOE,

Plaintiffs,
Case No.: 3:08-cv-361-MCR-EMT
v.

SCHOOL BOARD FOR SANTA

ROSA COUNTY, FLORIDA; JOHN
ROGERS, in his official capacity as
Superintendent of the School District of
Santa Rosa County, Florida; H. FRANK
LAY, in his official capacity as
Principal of Pace High School,

Defendants.
/

DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ COMPLAINT AND

SUPPORTING MEMORANDUM OF LAW

Defendants, SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA and

JOHN ROGERS, in his official capacity as Superintendent of the School District of Santa

Rosa County, Florida, (“Defendants”), by and through the undersigned counsel, and pursuant to

Fed. R. Civ. P. 12(f) and N.D. Fla. Loc. R. 7.1, move to strike Paragraphs 64 and 65 of the

Complaint, and in support of the relief requested, state as follows:

1. In Paragraphs 64 and 65 of the Complaint filed by Plaintiffs, allegations are made

regarding conversations that took place between counsel for the American Civil Liberties Union

(“ACLU”) and counsel for the Defendant School Board, Paul Green, prior to the date on which

suit was filed and after litigation was threatened.

 2. Reference is also made to a memorandum sent by Mr. Green to ACLU counsel

prior to distribution to School District officials in furtherance of settlement negotiations.

3. A true and exact copy of correspondence between Mr. Green and Benjamin

Stevenson, ACLU counsel and counsel for the Plaintiffs in this case, dated December 4, 2007,

and January 4, 2008, along with the affidavit of Paul Green, is attached as Composite Exhibit A.

4. The meetings held and the correspondence exchanged between the ACLU and

counsel for the School Board, and the fact that the memorandum was prepared by Mr. Green,

should not be referenced in the Complaint.

5. Accordingly, Paragraphs 64 and 65 should be stricken from the Complaint.

WHEREFORE, Defendants respectfully request the entry of an Order striking Paragraphs

64 and 65 of the Complaint, along with such other and further relief as this Court may deem

appropriate.

MEMORANDUM OF LAW

I. Standard of Review - Motions to Strike

The purpose of a Rule 12(f) motion to strike is to, inter alia, provide a means to remove

materials in the pleadings that are redundant, immaterial, impertinent and scandalous.

Fed.R.Civ.P. 12(f). “In evaluating a Motion to Strike, the court must treat all well-pleaded facts

as admitted and cannot consider matters beyond the pleadings.” Cherry v. Crow, 845 F.Supp.

1520, 1523 (M.D.Fla. 1994) (citing U.S. Oil Co., Inc. v. Koch Refining Co., 518 F.Supp. 957,

959 (E.D.Wis. 1981)). The court is vested with broad discretion in considering a motion to strike

under Rule 12(f). Williams v. Eckerd Family Youth Alternative, 903 F. Supp. 1515, 1517 (M.D.

Fla. 1995).

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II. Argument and Authority - Bases for Striking the Complaint

In Paragraph 64 of the Complaint, Plaintiffs reference a conversation between counsel for

the ACLU and Paul Green, counsel for the Santa Rosa County School Board, occurring on or

about November 14, 2007. (Doc. 1, Complaint, pg. 24, ¶64). As indicated in Mr. Green’s

affidavit, the purpose of the meeting was to discuss the possibility of resolving the issues that are

now part of this lawsuit.

In Paragraph 65, Plaintiffs reference a draft memorandum that was sent by Mr. Green to

ACLU in furtherance of settlement discussions. (Doc. 1, Complaint, pg. 24, ¶65). The

memorandum and accompanying letter were sent for the purpose of attempting to resolve the

dispute that is now at issue in this case. Citing the fact that the memorandum was sent, Plaintiffs

attempt to whipsaw the Defendants by alleging that “the School Board’s attorney, recognizing

that school officials were in violation of the Establishment Clause, drafted a memorandum to

advise which school officials’ practices violated the Establishment Clause. However, the School

Board failed to end the unconstitutional, [sic] policies, practices and customs.” (Doc. 1,

Complaint at p. 24, ¶65).

Plaintiffs have included references to settlement discussions and the preparation of a

memorandum by the School Board’s lawyer in order to establish liability in this case. More

specifically, Plaintiffs have included these allegations to establish that the Defendants failed to

remedy alleged violations of the Establishment Clause. To the extent Plaintiffs have not included

references to privileged conversations and documents to establish liability, these allegations are

impertinent and immaterial, and should be stricken pursuant to Rule 12(f).

Pursuant to Federal Rule of Evidence 408, conduct or statements made in furtherance of

3
settlement of a dispute is inadmissible to prove liability. Fed. R. Evid. 408(a). 1 Accordingly, all

references to this privileged meeting during which possible resolution of this dispute was

discussed, and references to all documents relating to such discussions, should be stricken from

the Complaint. See, Berry v. Lee, 428 F. Supp. 2d 546, 563 (N.D. Tex. 2006) (“Courts have,

however, used Rule 12(f) to strike allegations from complaints that detail settlement negotiations

within the ambit of Rule 408.”) (citing Phila.’s Church of Our Savior v. Concord Twp., 2004

U.S. Dist. LEXIS 15400 at *8, 2004 WL 1824356, at *2 (E.D. Pa. July 27, 2004) ("While Rule

408 does not apply to pleadings directly, . . . allegations in a complaint may be stricken, under

Rule 12(f), as violative of these policies."); United States ex rel.Alsaker v. CentraCare Health

Sys., Inc., 2002 U.S. Dist. LEXIS 10180 at *7, 2002 WL 1285089, at *2 (D. Minn. June 5, 2002)

("Under Rule 408, evidence of conduct or statements made in compromise negotiations is

inadmissible to prove liability. Although this is a rule of evidence, courts have routinely granted

motions to strike allegations in pleadings that fall within the scope of Rule 408." (citation

omitted)); Kelly v. L.L. Cool J., 145 F.R.D. 32, 40 (S.D.N.Y. 1992) (granting defendant's motion

1
The Rule states:

(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party,
when offered to prove liability for, invalidity of, or amount of a claim that was disputed
as to validity or amount, or to impeach through a prior inconsistent statement or
contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or

promising to accept a valuable consideration in compromising or attempting to
compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim,

except when offered in a criminal case and the negotiations related to a claim by
a public office or agency in the exercise of regulatory, investigative, or
enforcement authority.

Fed. R. Evid. 408.

4
to strike portions of complaint that referenced settlement discussions under Rule 408 as

immaterial and potentially prejudicial); Agnew v. Aydin Corp., 1988 U.S. Dist. LEXIS 9911 at

**8-12, 1988 WL 92872, *4 (E.D. Pa. Sept. 6, 1988) (striking parts of complaint pursuant to

Rule 408 because they referenced settlement negotiations for the purpose of showing liability)).2

The communications at issue here strike at the heart of Rule 408. If parties were free to

disclose pre-suit settlement negotiations in a complaint or other pleading, there would be no

reason for attorneys to exchange information in furtherance of settlement to avoid litigation.

Moreover, where, as here, the settlement communications are used as a sword – to establish the

failure to remedy alleged constitutional violations – the chilling effect is event more palpable,

and provides an even greater impetus to strike any reference to such communications from a

complaint.

Accordingly, Paragraphs 64 and 65 of the Complaint should be stricken from the

Complaint and Plaintiffs should be ordered to submit an Amended Complaint removing

references to privileged documents and meetings.

CERTIFICATE OF COUNSEL CONFERENCE

Pursuant to N. D. Fla. Loc. R. 7.1(B), the undersigned certifies that he has contacted

counsel for the Plaintiffs in a good faith effort to resolve the issues raised herein. Plaintiffs’

counsel has indicated that Plaintiffs oppose the motion. Counsel for Defendant, Frank Lay, in his

official capacity as Principal of Pace High School has consented to, and joins in, the filing of this

Motion.

Dated this 22d day of October, 2008.

2For ease of the Court’s reference, copies of all cases using a LEXIS citation are attached as
Composite Exhibit B.

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Respectfully submitted,
/s/ Robert J. Sniffen
ROBERT J. SNIFFEN
Florida Bar Number: 0000795
SNIFFEN LAW FIRM, P.A.
211 East Call Street
Tallahassee, Florida 32301
E-mail address: rsniffen@sniffenlaw.com
Telephone: (850) 205-1996
Facsimile: (850) 205-3004
/s/ J. David Marsey
J. DAVID MARSEY
Florida Bar Number: 0010212
SNIFFEN LAW FIRM, P.A.
211 East Call Street
Tallahassee, Florida 32301
E-mail address: dmarsey@sniffenlaw.com
Telephone: (850) 205-1996
Facsimile: (850) 205-3004
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/s/ Paul Green
PAUL GREEN
Florida Bar No.: 127448
JOHNSON, GREEN and MILLER, P.A.
6850 Caroline Street
Milton, FL 32570
E-Mail Address: paulg1229@bellsouth.net
Telephone: (850) 623-3841
Facsimile: (850) 623-3555
COUNSEL FOR DEFENDANTS
SCHOOL BOARD OF SANTA ROSA
COUNTY, FLORIDA and JOHN
ROGERS, IN HIS OFFICIAL CAPACITY
AS SUPERINTENDENT OF THE
SCHOOL DISTRICT OF SANTA ROSA
COUNTY, FLORIDA
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 22d day of October, 2008, I electronically filed
Defendants’ Motion to Strike Complaint and Supporting Memorandum of Law, in the United
States District Court for the Northern District of Florida, Tallahassee Division, by using the
CM/ECF system which will send a notice of electronic filing to the following counsel of record:

Counsel For Plaintiffs: Counsel for Defendant H. Frank Lay:

Benjamin James Stevenson Christopher Barkas

American Civil Liberties Union Carr Allison
Foundation of Florida 305 South Gadsden Street
Post Office Box 12723 Tallahassee, Florida 32301
Pensacola, Florida 32591-2723
Matthew D. Liebenhaut
Glenn M. Katon Carr Allison
American Civil Liberties Union 305 South Gadsden Street
Foundation of Florida Tallahassee, Florida 32301
Post Office Box 18245
Tampa, Florida 33679

Randall C. Marshall
Maria Kayanan
American Civil Liberties Union
Foundation of Florida
4500 Biscayne Boulevard, Suite 340
Miami, Florida 33137

Daniel Mach
Heather L. Weaver
ACLU Program on Freedom of
Religion and Belief
915 15th Street, NW
Washington, DC 20005

/s/ Robert J. Sniffen

Robert J. Sniffen