Swisher et al v. Collins et al, No. 1:2006cv00338 - Document 214 (D. Idaho 2008)
Court Description: MEMORANDUM DECISION ORDER Granting in part and Denying in part the motions for more definite statement and to strike 162 , 164 , 166 , and 167 . No further amendments of the plaintiffs' complaint shall be allowed. All dispositive motions in this case due by 1/24/09. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ELVEN JOE SWISHER, PRO SE, WALTER O. LINDSEY, PRO SE, ) ) ) Plaintiffs, ) ) v. ) ) MIKE MEADE; PATRICK D. TEAGUE; ) STEVEN TEAGUE; JOSEPH VOLK; ) FRANK KISH; VIC VOLTAGGIO; ) DENNIS DRESSLER; ROBERT ) GILMORE; BILL SNOW; DAVE LEWIS; ) DUANE ANDERSON; MICHAEL A. ) BLUM; HELEN HICKS; JOHN DOE #1 ) THROUGH JOHN DOE #15; JANE DOE ) #1 THROUGH JANE DOE #15; JOHN ) DOE #16 THROUGH JOHN DOE #20; ) JANE DOE #15 THROUGH JANE DOE ) #20; NATIONAL MARINE CORPS ) LEAGUE (US CORP.); IDAHO ) OBSERVER; DON HARKINS; WESLEY ) HOYT; ROLAND HINKSON; U.S. ) TREASURY DEPARTMENT; NATIONAL) PERSONNEL RECORDS CENTER (US ) AGENCY); IDAHO DIVISION OF ) VETERANS SERVICES (IDAHO STATE ) AGENCY); UNITED STATES MARINE ) CORP. (US Agency); PAUL HASTINGS; ) GREG TOWERTON; BARRY ) GEORGOPULOS; VETERANS ) ADMINISTRATION AND/OR ) DEPARTMENT OF VETERANS ) AFFAIRS (US AGENCIES), ) Memorandum Decision and Order - 1 Case No. CV-06-338-S-BLW MEMORANDUM DECISION AND ORDER ) Defendants. ) ___________________________________) INTRODUCTION The Court has before it a number of motions for more definite statement or to strike. The motions are fully briefed and at issue. The Court will grant in part, and deny in part, the motions for the reasons explained below. MEMORANDUM DECISION Plaintiffs Swisher and Lindsey filed their original complaint on August 24, 2006. The defendants filed motions to dismiss that were analyzed by the United States Magistrate Judge in a Report and Recommendation (R&R) filed September 24, 2007. The R&R contained a detailed analysis of every claim, and was over 63 pages in length. On March 10, 2008, after obtaining the case by reassignment, this Court issued a decision adopting the Magistrate Judge s recommendation. The result was that most claims were dismissed, but plaintiffs were allowed to re-plead with more specificity (1) their Privacy Act claim against the federal agencies and (2) their defamation and breach of contract claims against other defendants. In an attempt to comply with the Court s decision, the plaintiffs filed an amended complaint on April 9, 2008. The defendants responded with the motions Memorandum Decision and Order - 2 now before the Court seeking a more definite statement or, in the alternative, an order striking portions of the pleading. The plaintiffs countered on May 19, 2008, with yet another amendment attempt, filing a five-part second amended complaint. While defendants Hoyt and the Government filed answers to the second amended complaint, and the Government has filed a motion for summary judgment, other defendants stood on their motions for more definite statement or to strike. As to those motions, the Court agrees to strike any allegations by Swisher that he was defamed by accusations that he lied during the Hinkson trial. See United States v. Hinkson, 526 F.3d 1262 (9th Cir. 2008) (holding that Swisher was conclusively shown . . . to be a forger and a liar . . . . ). The Court will also strike any allegations that attempt to allege new claims, or re-allege dismissed claims. With those strikes, the remaining allegations pass muster under the liberal standard set forth in Rule 8(a). ORDER In accordance with the Memorandum Decision set forth above, NOW THEREFORE IT IS HEREBY ORDERED, that the motions for more definite statement and to strike (Docket Nos. 162, 164, 166 & 167) are GRANTED IN PART AND DENIED IN PART. The motions are granted to the extent they seek to strike all allegations in the second amended complaint that attempt to allege Memorandum Decision and Order - 3 new claims (or re-allege dismissed claims) or allege that Swisher was defamed by accusations that he lied during the Hinkson trial. The motions are denied in all other respects. IT IS FURTHER ORDERED, that no further amendments of the plaintiffs complaint shall be allowed. IT IF FURTHER ORDERED, that all dispositive motions in this case be filed on or before January 24, 2009. DATED: December 16, 2008 Honorable B. Lynn Winmill Chief U. S. District Judge Memorandum Decision and Order - 4
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