The Volokh Conspiracy

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Law & Government

"Leung, Like the Villainous Deacon in the Movie Night of the Hunter, Was Back!"

An "inappropriate editorial statement[]" struck from a lawsuit alleging school sexual abuse, together with many other "immaterial and impertinent" statements.


From Chief Judge F. Dennis Saylor IV in McLeod v. Fessenden School (D. Mass.):

This case concerns alleged acts of sexual abuse and molestation of a student by her teacher. According to the complaint, some of the abuse occurred during a summer program at The Fessenden School…. The complaint, exclusive of exhibits, is 152 pages long; it names 49 defendants and purports to assert 65 counts. Portions of it read more like a tabloid story than a legal pleading, and large sections of it are obviously irrelevant and improper. Defendants have moved to strike various portions of the complaint under Fed. R. Civ. P. 12(f)….

Pursuant to Fed. R. Civ. P. 12(f), the court may strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter." Rule 12(f) specifically gives the court discretion as to whether or not to strike a particular matter, although motions to strike are generally disfavored.

The challenged portions of the complaint contain substantial amounts of attorney argument, inadmissible opinion, legal conclusions, and irrelevant allegations. Such statements, at a minimum, are immaterial because they have "no essential or important relationship to the claim for relief or the defenses being pleaded" and are impertinent because they "do not pertain, and are not necessary, to the issues in question." They will accordingly be struck….

Allegations concerning the defendant's childhood, his mother, and his ethnic origin are obviously immaterial and impertinent [and will be struck]…. Allegations concerning the occupations, personal wealth, and private lives of the trustees of Fessenden are immaterial and impertinent [and will be struck]….

Allegations referring to past suspected sexual assaults that occurred on Fessenden's campus are also immaterial and impertinent. Most of those allegations refer to alleged sexual assaults that occurred 20 to 40 years ago. But even as to the allegations that refer to more recent suspected acts of sexual abuse, there is no allegation, or even any suggestion, in the complaint that this should have put defendants on notice of such conduct.

Because information concerning other alleged sexual assaults occurring on Fessenden's campus are immaterial, the following portions of the complaint, including illustrations, will be struck: paragraphs 72-84, 86-90, 93, 94, 161, and 167-69….

Plaintiff included a multitude of other irrelevant statements throughout the complaint. For example, the complaint contains information regarding some of the "distinguished alumni" of Fessenden. And it is larded with inappropriate editorial statements, such as the last sentences of paragraphs 4 and 164. (See id. ¶ 4 ("However, the real cause of Fabiana's symptoms was more sinister.") and ¶ 164 ("Leung, like the villainous deacon in the movie Night of the Hunter, was back!")).

In addition, the complaint contains numerous statements that refer to news reports of the charges brought against Leung and counsel's pre-litigation communications with Fessenden.

Those statements are unrelated to plaintiffs' claims of alleged abuse or defendants' failure to stop that abuse and will be struck….

The court, however, denied the motion to strike as to material that it found potentially relevant to the case, and of course the rest of the case will still go forward.