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Chappuis v. Ortho Sport & Spine Physicians Savannah, LLC

Supreme Court of Georgia

March 4, 2019

CHAPPUIS et al.
v.
ORTHO SPORT & SPINE PHYSICIANS SAVANNAH, LLC.

          NAHMIAS, PRESIDING JUSTICE.

         This case comes to our Court at an early stage of a lawsuit stemming from the contentious relationship of two former business partners. The trial court struck 15 paragraphs of the plaintiff's complaint pursuant to OCGA § 9-11-12 (f), but the Court of Appeals reversed most of that order in Ortho Sport & Spine Physicians Savannah, LLC v. Chappuis, 344 Ga.App. 233 (808 S.E.2d 559) (2017). We granted a writ of certiorari to address how a trial court should evaluate a party's § 9-11-12 (f) motion to strike matter from a pleading on the ground that it is "scandalous." As explained below, because the trial court in this case did not properly evaluate the defendants' motion to strike, and because that court should have the opportunity to properly exercise its discretion regarding the motion, we vacate the judgment of the Court of Appeals in part and remand with direction to vacate the trial court order and remand the case to that court for analysis consistent with this opinion.

         1. On August 3, 2015, Ortho Sport & Spine Physicians Savannah, LLC (Ortho Sport) filed a verified complaint in Fulton County Superior Court against defendants James Chappuis, M.D.; Chappuis Properties, LLC; Orthopaedic & Spine Surgery of Atlanta, LLC (OSSA); and Jordan Strudthoff.[1] Ortho Sport alleges the following basic facts in its complaint. Dr. Chappuis and Dr. Armin Oskouei were partners in a medical practice in Atlanta. In early 2014, their relationship deteriorated. Dr. Chappuis began threatening to kill Dr. Oskouei and hired people to stalk him and his staff. This conduct and the resulting business consequences were the subject of a lawsuit in Fulton County that ultimately settled.[2] Dr. Oskouei left Atlanta and started Ortho Sport in Savannah. After about a year, Dr. Chappuis, through his company Chappuis Properties, LLC, bought the building in Savannah that Ortho Sport had been leasing. Dr. Chappuis and the other defendants began to harass Dr. Oskouei, his employees, and his patients. This included business-related harassment, such as refusing to accept rent payments and disparaging Ortho Sport to potential patients, as well as personal harassment, such as writing a racist message in the dust on Dr. Oskouei's vehicle. As a result, Ortho Sport vacated the leased property. Based on the defendants' conduct, Ortho Sport alleges claims of civil conspiracy, alter-ego liability and piercing the corporate veil, breach of warranty of quiet enjoyment and constructive eviction, intentional infliction of emotional distress, trespass, invasion of privacy, slander per se, slander and oral defamation, and tortious interference with business relations. The complaint also requests punitive damages and attorney fees.

         On August 20, 2015, the defendants filed their answer along with a motion to strike Paragraphs 7, 17-28, and 31-32 of the complaint on the ground that those allegations are "redundant, immaterial, impertinent, or scandalous," citing OCGA § 9-11-12 (f). Paragraphs 7 and 31 allege that Dr. Chappuis has a history of drug and alcohol abuse, including performing a surgery while using cocaine, and a history of violence, including threatening to kill Dr. Oskouei and his staff when they worked together in Atlanta. Paragraph 17 alleges that the defendants' actions in Savannah are reminiscent of Dr. Chappuis's harassing behavior in Atlanta. Paragraphs 18-20 allege that Dr. Chappuis is a known racist and left racist and sexual messages on Dr. Oskouei's vehicle and elsewhere, and that Dr. Chappuis systematically fired all African Americans from his medical operations. Paragraphs 21-24 allege that the defendants are responsible for suspicious individuals disturbing Ortho Sport's employees by hanging around its lobby, soliciting its patients, telling patients not to use Ortho Sport, and inquiring about confidential business information. Paragraphs 25 and 26 allege that as Dr. Chappuis did in Atlanta, he has again hired people, this time including someone who impersonated a police officer, to stalk Dr. Oskouei in order to psychologically impair him and force him to abandon his business and to vacate his house and move to an undisclosed location. Paragraph 27 alleges that Dr. Chappuis has boasted "about having illicit 'connections' [and] engaging in illegal behaviors (such as hiring prostitutes), and would even bring fully automatic weapons to showcase within their medical practice." That paragraph further alleges that "[w]hen threatening Dr. Oskouei's life, Dr. Chappuis, who is of Italian decent, furiously asserted that 'you need to fear for your life, because you're going to meet the real Sicilian.'" Paragraphs 28 and 32 say that Ortho Sport takes Dr. Chappuis's threats seriously because of his past statements and history. Ortho Sport filed a response to the § 9-11-12 (f) motion, arguing that each of these allegations is relevant to its claims against the defendants.

         Without a hearing and in a one-sentence order prepared by the defendants' counsel and containing no reasoning, the trial court struck in full all 15 of the disputed paragraphs. The trial court then granted Ortho Sport's request for a certificate of immediate review, and the Court of Appeals granted Ortho Sport's application for an interlocutory appeal.

         In deciding the appeal, the Court of Appeals applied the following single standard to the entire motion to strike:

"Generally, such motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation." (Citation and punctuation omitted.) Dept. of Transp. v. Taunton, 217 Ga.App. 232, 233 (457 S.E.2d 570) (1995). "[I]f there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied." Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga.App. 297, 302 (3) (208 S.E.2d 258) (1974).

Ortho Sport, 344 Ga.App. at 236-237. The Court of Appeals then reversed most of the trial court's order, concluding that most of the disputed paragraphs should not have been struck because the court could not say that they "'can have no possible bearing upon the subject matter of [this] litigation.'" Id. (quoting Taunton, 217 Ga.App. at 233). The Court of Appeals affirmed only the striking of: "(1) the reference to Dr. Chappuis' drug use in Paragraph 7; (2) the reference to Dr. Chappuis 'engaging in illegal behaviors (such as hiring prostitutes)' in Paragraph 27; and (3) the entirety of Paragraph 31, which relates to Dr. Chappuis' alleged alcohol and substance abuse." Id. at 237. The defendants petitioned this Court for a writ of certiorari, which we granted, asking whether the Court of Appeals erred in its review of the trial court's decision to strike "scandalous" matter from Ortho Sport's complaint.

Upon motion made by a party within 30 days after the service of the pleading upon him, 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.

         This Court has never addressed how trial courts should evaluate motions made under § 9-11-12 (f) to strike portions of pleadings as redundant, immaterial, impertinent, or scandalous.[3] Georgia's statutory civil practice rule is modeled, however, on Federal Rule of Civil Procedure 12 (f), and "[w]e may look to [Rule 12 (f)] and the Federal decisions thereunder, therefore, to aid us in determining the purpose and meaning of [the Georgia] rule." McGivern, 123 Ga.App. at 301-302. See also Community & Southern Bank v. Lovell, 302 Ga. 375, 377 n.6 (807 SE2 444) (2017); Ambler v. Archer, 230 Ga. 281, 287 (196 S.E.2d 858) (1973).[4]

         In granting the petition for certiorari, this Court asked specifically about the "scandalous" category of OCGA § 9-11-12 (f). A significant number of federal cases have focused on the "scandalous" component of Rule 12 (f); drawing on those decisions, leading federal practice treatises define scandalous matter as "that which improperly casts a derogatory light on someone," 5C Arthur R. Miller et al., Federal Practice and Procedure - Civil § 1382 (3d ed. 2018) (hereinafter, Wright & Miller), and "any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court," 2 Milton I. Shadur, Moore's Federal Practice - Civil § 12.37 [3] (3d ed. 2018) (hereinafter, Moore's Federal Practice). The Court of Appeals did not look to the federal decisions or treatises, however; in fact, the court did not conduct any distinct analysis as to whether any of Ortho Sport's allegations were scandalous, instead relying on two of that court's prior opinions that did not focus on whether the matter in question was scandalous. And the trial court order contained no analysis at all, much less specific analysis of the scandalous question. As explained below, we conclude that when a § 9-11-12 (f) motion specifically seeks the striking of scandalous matter from a pleading, the trial court must consider not only the "possible bearing" - potential relevance - of the allegation, but also the prejudice the allegation will cause.

         (a) We begin by acknowledging that having one test as the starting point for reviewing § 9-11-12 (f) motions to strike is appropriate. Although the rule uses four different adjectives - redundant, immaterial, impertinent, and scandalous - it is well-accepted that "[t]hese four terms used were not intended to be mutually exclusive; there is a certain amount of overlapping between them, particularly the first three." McGivern, 132 Ga.App. at 302 (citing several federal cases). See also Schenley Distillers Corp. v. Renken, 34 F.Supp. 678, 684 (E.D.S.C. 1940). And even the fourth term - scandalous - shares important points of commonality with its § 9-11-12 (f) compatriots.

         A key point of overlap is the disfavored nature of these motions, whichever term is invoked. See McGivern, 132 Ga.App. at 302 ("Motions to strike alleged redundant, immaterial or impertinent or scandalous matter are not favored." (citing the second edition of Moore's Federal Practice)); 5C Wright & Miller § 1382 ("[F]ederal judges have made it clear, in numerous opinions they have rendered in many substantive contexts, that Rule 12 (f) motions to strike on any of these grounds are not favored."). One of the reasons these motions to strike are so disfavored is that they "'propose[] a drastic remedy.'" 2 Moore's Federal Practice § 12.37 [1] (citation omitted). See also Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) ("[S]triking 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.'" (citation omitted)). Broadly striking allegations can completely eliminate a claim or defense, which is not a proper use of a motion to strike. See Brown v. Joiner Intl., Inc., 523 F.Supp. 333, 336 (S.D. Ga. 1981) ("Motions to strike cannot be used to determine disputed fact questions, nor can they be used to decide disputed and substantial questions of law, particularly where there is no showing of prejudice to the movant." (citation omitted)).

         An important part of guarding against the improper use of motions to strike is ensuring that matter that is relevant to the litigation is not readily struck. The preservation of relevant allegations is generally required no matter which § 9-11-12 (f) term the movant invokes. As the treatises explain, this is why many federal courts have held that an allegation is "scandalous" under Rule 12 (f) only when it is not relevant to the case. See, e.g., 5C Wright & Miller § 1382 ("It is not enough that the matter offends the sensibilities of the objecting party if the challenged allegations describe acts or events that are relevant to the action."); 2 Moore's Federal Practice § 12.37 [3] ("[C]ourts will usually strike so-called scandalous material only if it is irrelevant and immaterial to the issues in controversy."). See also Black's Law Dictionary (10th ed. 2014) ...


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