UNITED STATES DISTRICT COURT

NORTHER DISTRICT OF INDIANA

FORT WAYNE DIVISION

BBL, INC., ALVA J. BUTLER, and )

SANDRA K. BUTLER, )

)

Plaintiffs, )

)

v. ) CAUSE NO. 1:13-CV-76

)

CITY OF ANGOLA, DEAN TWITCHELL, )

in his official capacity, and VIVIAN LIKES, )

in her individual capacity, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion to Strike Amended Verified

Complaint (Docket # 11), seeking to strike the Amended Complaint in its entirety. For the

following reasons, the motion will be GRANTED. 

A. Factual and Procedural Background

Plaintiffs BBL, Inc., Alva J. Butler, and Sandra K. Butler brought this action against

Defendants, the City of Angola, Dean Twitchell, and Vivian Likes, on March 19, 2013, alleging

that the City of Angola and its agents changed city ordinances to prevent their adult

entertainment business from opening. (Docket # 1.) Their original complaint was 49 pages

long, contained 281 numbered paragraphs and 34 exhibits, which added an additional 150 pages,

and brought seven counts against Defendants. (See Docket # 1.)

Before Defendants answered, Plaintiffs filed an Amended Complaint on April 10, 2013. 

(Docket # 10.) Although the Amended Complaint contains the same seven counts brought in the

1
original complaint and the same parties, it is more than triple the size of the first complaint,

comprised of 168 pages (excluding the Certificate of Service) and 1047 numbered paragraphs as

well as 32 exhibits, totaling an additional 155 pages. (See Docket # 10.) Essentially the only

change to the Amended Complaint, with the exception of some minute alterations, is the addition

of 779 paragraphs, spanning 117 pages, which contain allegations related to the City’s

“secondary effects” justification for enacting the ordinances. (Am. Compl. ¶¶ 162-940.) 

Defendants subsequently filed a motion to strike the Amended Complaint (Docket # 11),

arguing that it is replete with advocacy, unnecessary and excessive commentary, purported

evidence, and irrelevant facts, including a personal attack on one of Defendants’ attorneys, Scott

Bergthold, who has represented governmental entities in other adult business litigation (Mem. of

Law in Supp. of Defs.’ Mot. to Strike Am. Verified Compl. (“Defs.’ Mem. of Law”) 1-2). 

Moreover, Defendants contend that the Amended Complaint violates Federal Rule of Evidence

8(a) and that requiring them to respond to it would be prejudicial. (Defs.’ Mem. of Law 2, 11-

12; see Defs.’ Reply Br. in Supp. of Their Mot. to Strike Am. Verified Compl. (“Defs.’ Reply”)

6-10 .) They ask the Court to strike the Amended Complaint in its entirety. (Mot. to Strike Am.

Verified Compl. 2; Defs.’ Mem. of Law 12.)

Plaintiffs respond that Rule 8 should not be used to dismiss a complaint based on length

alone, that the detailed “secondary effects” allegations are necessary as pled, and that requiring

Defendants to answer these allegations now will significantly narrow discovery and allow for the

filing of early motions for preliminary injunction or summary judgment. (See Pls.’ Br. in Opp.

to Defs.’ Mot. to Strike Am. Verified Compl. (“Pls.’ Resp.”) 6-12, 17-20.) In their reply,

Defendants reiterate that they do not seek to dismiss Plaintiffs’ claims, but only to strike the

2
Amended Complaint, leaving the original complaint in place. (Defs.’ Reply. 1.)

B. Applicable Legal Standard

Federal Rule of Civil Procedure 12(f) provides that the Court “may strike from a

pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” FED. R. CIV. P. 12(f). “Generally speaking, motions to strike portions of pleadings are

disfavored as they consume scarce judicial resources and may be used for dilatory purposes.”

Silicon Graphics, Inc. v. ATI Tech. ULC, No. 06-C-611-C, 2007 WL 5312633, at *1 (W.D. Wis.

Mar. 12, 2007) (citing Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir.

2006); Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). Thus,

motions to strike pleadings “will generally be denied unless the portion of the pleading at issue

is prejudicial.” U.S. Liab. Ins. Co. v. Bryant, No. 3:10-cv-129, 2011 WL 221662, at *1 (S.D. Ill.

Jan. 21, 2011). The decision whether to strike material under Rule 12(f) is within the discretion

of the district court. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). 

C. Analysis

The Federal Rules of Civil Procedure employ a notice-based, rather than fact-based,

pleading system. Hardin v. Am. Elec. Power, 188 F.R.D. 509, 510 (S.D. Ind. 1999) (citations

omitted). Specifically, Rule 8 requires that the complaint contain “a short and plain statement of

the claim showing that the pleader is entitled to relief” and that each allegation “be simple,

concise, and direct.” FED. R. CIV. P. 8(a)(2), (d)(1); accord Davis v. Ruby Foods, Inc., 269 F.3d

818, 819 (7th Cir. 2001). According to the Seventh Circuit Court of Appeals, “[t]he word

‘short’ in Rule 8(a)(2) is a relative term. Brevity must be calibrated to the number of claims and

also to their character, since some require more explanation than others to establish their

3
plausibility . . . .” Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir. 2013). At the same time,

however, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and citation omitted)). 

The Amended Complaint, spanning 168 pages and containing 1047 paragraphs, certainly

fulfills the “notice” function contemplated by the Federal Rules. It is organized and clearly

delineates the seven claims brought against Defendants. (See Am. Compl. ¶¶ 941-1028.) But to

get to those claims, the reader must plow through 143 pages, 117 of which consist primarily of a

recounting of Attorney Bergthold’s role in this, and other, adult business litigation and a

document-by-document attack of each supportive material the City relied upon in changing its

ordinances. (See Am. Compl. ¶¶ 162-940.) Generally, the presence of extraneous material in a

complaint that adequately performs the notice function does not warrant dismissal of that

complaint. Davis, 269 F.3d at 820-21. This is because “[p]rolixity is a bane of the legal

profession but a poor ground for rejecting potentially meritorious claims. Fat in a complaint can

be ignored, confusion or ambiguity dealt with by means other than dismissal.” Bennett v.

Schmidt, 153 F.3d 516, 517 (7th Cir. 1998). 

Importantly, however, Defendants do not seek dismissal of the Amended Complaint, but

rather attempt to deal with its prolixity by means other than dismissal—by striking the Amended

Complaint and replacing it with the original complaint, which is only 49 pages and does not

contain the 117 pages challenging the City’s secondary effects justification. Although “motions

to strike are generally disfavored because they are seen as tools to delay litigation,” “where a

4
motion to strike ‘removes unnecessary clutter from the case, [it] serve[s] to expedite, not

delay.’” Hardin, 188 F.R.D. at 511 (quoting Heller Fin., Inc., 883 F.2d at 1294). Defendants’

motion to strike seeks to remove clutter from this case—evidentiary detail and argument that

may later become important, but does not belong in a complaint—thereby expediting the case

rather than delaying it. 

Nevertheless, mere redundancy or immateriality is insufficient to trigger the drastic

measure of striking the pleading; the pleading must also be prejudicial to the defendant. Id.

(citations omitted). Prejudice occurs when “the challenged allegation has the effect of confusing

the issues or is so lengthy and complex that it places an undue burden on the responding party.” 

Ind. Ins. Co. v. Westfield Ins. Co., No. 10 C 2660, 2010 WL 3404971, at *3 (N.D. Ill. Aug. 26,

2010) (quoting Cumis Ins. Soc., Inc. v. Peters, 983 F. Supp. 787, 798 (N.D. Ill. 1997)). 

Defendants argue that requiring them to respond to the Amended Complaint is prejudicial,

necessitating that they exercise an inordinate amount of time and effort responding to the more

than one thousand paragraphs, a majority of which contain material they argue is irrelevant,

immaterial, and constituting advocacy and evidentiary detail. (Defs.’ Mem. of Law 11-12.) 

They further contend that answering some of the allegations in the Amended Complaint would

require disclosure of attorney-client communications or attorney mental impressions. (Defs.’

Reply 10.) 

The only substantial—and voluminous—change in the Amended Complaint is the

addition of over 775 paragraphs, spanning 117 pages, that recounts Attorney Bergthold’s role in

this case and other adult entertainment business litigation and attacks the City’s secondary

effects justification for enacting its new ordinances. The paragraphs addressing Attorney

5
Bergthold’s role in adult business regulation and litigation point to a history of apparent

animosity between counsel in this case (see, e.g., Am. Compl. ¶¶ 184 (describing Bergthold’s

current practice as almost exclusively representing governments to “eradicate what he and/or the

governmental entities consider to be ‘adult’ entertainment businesses”), 225-38, 254-55

(pejoratively referring to Bergthold’s presentation of the adverse secondary effects of adult

entertainment businesses as the “Bergthold Dog and Pony Show”)) and suggest that the more

than tripled-in-size Amended Complaint was at least partly aimed at harassing Attorney

Bergthold and his clients. This impression is further supported by the fact that the Amended

Complaint adds no new parties or claims and leaves the existing claims relatively untouched,

without any significant alterations. Any punishment for overdrafting “should be fitted to the

crime,” Davis, 269 F.3d at 82, and, here, the potential presence of a harassing motive supports

striking the Amended Complaint, cf. id. (declining to dismiss a 20-page complaint where it was

“only faintly blameworthy and entirely harmless”). 

Furthermore, the secondary effects section contains countless evidentiary details

attacking the sources Attorney Bergthold allegedly relied on in developing the presentations

given to the City and the materials cited in the City’s Preambles to its ordinances and delineating

the contradictory sources intentionally omitted from them. (See, e.g., Am. Compl. ¶¶ 225-55,

364-940.) The Amended Complaint also includes a number of paragraphs that recite applicable

legal authority and argue about how it applies here. (See Am. Compl. ¶¶ 343-60.) But evidence,

theories, and speculation about the disputed events “belong (if anywhere) in an argumentative

brief and not a complaint.” Mutuelle General Francaise Vie v. Life Assurance Co. of Penn., 688

F. Supp. 386, 391 (N.D. Ill. 1988). Furthermore, evidentiary material supporting the general

6
statements in a complaint normally should not be set out in the pleadings, but rather left to be

brought to light during the discovery process. Hardin, 188 F.R.D. at 511 (quoting 5 CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1281 (2d ed. 1990

& Supp. 1999)).

Plaintiffs admittedly seek to circumvent this norm, arguing that forcing Defendants to

respond to these secondary effects allegations will significantly narrow discovery and potentially

allow them to file early motions for preliminary injunction or summary judgment. (Pls.’ Resp.

19-20.) Yet, if a defendant cannot use a motion for a more definite statement as a substitute for

discovery, Hilst v. Freedom Graphic Sys., No. 03-C-0186-C, 2003 WL 23190928, at *1 (W.D.

Wis. Aug. 27, 2003) (citations omitted), a plaintiff should be prohibited from doing the same

through a complaint. And just because the Local Rules permit only 30 requests for admissions

does not justify the use of an amended complaint to bypass the discovery process, particularly

since a party can seek to be relieved from this limit. See N.D. IND. L.R. 26-1(c) (stating that a

“party wanting to serve more requests must file a motion setting forth the proposed additional

requests and why they are necessary”). And Plaintiffs completely ignore the fact that other

discovery methods also exist. 

Under the circumstances of this case, requiring Defendants to respond individually to

each of the 1047 paragraphs in the Amended Complaint—as Local Rule 10-1 requires—over

775 of which are either extraneous or not properly in the complaint to begin with, would impose

an undue burden. As Defendants point out, many of these paragraphs touch on Attorney

Bergthold’s representation of both the City in this matter as well as other governmental entities. 

(See Am. Compl. ¶¶ 162-77, 265-90.) As such, requiring Defendants to respond to these

7
allegations could implicate attorney-client privileges. And numerous other paragraphs in the

secondary effects section offer merely speculative allegations about why the City may have hired

Bergthold and his law firm, or why they enacted the ordinances. Such gratuitous speculation

does not belong in a complaint. Mutuelle General Francaise Vie, 688 F. Supp. at 391. 

Moreover, although prolixity is a poor ground for rejecting potentially meritorious

claims, Bennett, 153 F.3d at 517, the Amended Complaint does not contain any new claims;

thus, striking it would not entail the rejection of any claim as all claims would be preserved in

the original complaint, which will stand. This distinguishes the instant case from McGrath v.

Everest Nat’l Ins. Co., 625 F. Supp. 2d 660, 665-66 (N.D. Ind. 2008), on which Plaintiffs rely

(Pls.’ Resp. 8-9), because the plaintiff in that case, unlike Plaintiffs here, did add new claims in

her proposed 49-page amended complaint, including a fraud claim that was subject to Rule

9(b)’s heightened pleading standard. But none of these circumstances that justified a lengthy

amended complaint in McGrath are present here, and the Amended Complaint in this case is

more than three times the length of the one allowed in McGrath.

The burden on Defendants of responding to the massive Amended Complaint is further

exacerbated, as mentioned earlier, by Local Rule 10-1, which requires Defendants in their

Answer to “restate verbatim the paragraphs from the pleading they respond to” and,

“immediately following each restated paragraph, state the response to that paragraph.” N.D.

IND. L.R. 10-1(a) (emphasis added). Compliance with this rule would result in an Answer

double the length of an already bloated Amended Complaint, placing an unnecessary and undue

burden on the Court as well. As the Seventh Circuit has recognized, “[a] complaint that is prolix

and/or confusing makes it difficult for the defendant to file a responsive pleading and makes it

8
difficult for the trial court to conduct orderly litigation.” Vicom, Inc. v. Harbridge Merch.

Servs., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994) (citations omitted). The overwhelming length

of the Amended Complaint and its inclusion of inappropriate and extraneous material makes it

difficult for Defendants and the Court to proceed forward in this litigation, as it creates an undue

burden and justifies its striking. See Hardin, 188 F.R.D. at 511 (“[U]nnecessary prolixity in a

pleading places an unjustified burden on the court and the party who must respond to it because

they are forced to select the relevant material from a mass of verbiage.” (quoting Roberto’s Fruit

Market, Inc. v. Schaffer, 13 F. Supp. 2d 390, 395 (E.D.N.Y. 1998))). 

Finally, Plaintiffs’ arguments, and the cases they rely upon, do not lead to a different

result in this case. For instance, Plaintiffs maintain that it is their obligation to attack each and

every predicate in the Preambles that the City relied on in enacting its ordinances. (Pls.’ Resp.

18.) But Plaintiffs do not explain why they must do so in their complaint. Once again, because

all the Federal Rules require is notice pleading, “there is absolutely no need for the [P]laintiffs to

plead evidence” or facts. Wardell v. City of Chicago, No. 98 C 8002, 99 C 1856, 2001 WL

849536, at *2 (N.D. Ill. July 23, 2001). 

Further highlighting counsel’s past history, Plaintiffs contend that the failure to make

specific allegations in other cases has led Attorney Bergthold to file motions to dismiss, which

have been granted, and caused courts to fault other plaintiffs for attacking the evidentiary basis

for similar ordinances “with a club rather than a scalpel” and for not casting doubt on all of the

studies on which the municipality relied. (Pls.’ Resp. 18-19 (citing Sensations v. City of Grand

Rapids, 526 F.3d 291 (6th Cir. 2008); Keepers, Inc. v. City of Milford, __ F. Supp. 2d __, 2013

WL 1297839, at *11 (D. Conn. Mar. 30, 2013); Metro Pony, LLC v. City of Metropolis, No. 11-

9
cv-144-JPG, 2012 WL 1389656, at *11 n.2 (S.D. Ill. Apr. 20, 2012).) 

In Sensations, however, the district court granted the defendants’ motion for judgment on

the pleadings, not a motion to dismiss, because the City of Grand Rapids expressly relied upon

decisions of the Supreme Court, the Sixth Circuit, Michigan courts, and other federal circuit

courts, which had upheld each of the restrictions set forth in the challenged ordinance and found

sufficient evidence of secondary effects. Sensations, Inc. v. City of Grand Rapids, No. 1:06-CV300, 4:06-CV-60, 2006 WL 5779504, at *6 (W.D. Mich. Oct. 23, 2006). Contrary to Plaintiffs’

representations, this motion was not granted because the complaint failed to include specific

allegations attacking each of the predicates the City of Grand Rapids relied upon in enacting its

ordinance. Additionally, the other two cases Plaintiffs point to were before the Court on motions

for summary judgment, Keepers, Inc., 2013 WL 1297839, at *1; Metro Pony, LLC, 2012 WL

1389656, at *1, where such evidentiary attacks on the defendants’ secondary effects justification

are appropriately brought. 

Although the proper response to a motion to strike is ordinarily striking only the

offending parts, the entire pleading may be stricken if “a great deal of judicial energy would

have to be devoted to eliminating the unnecessary matter and restructuring the pleading.” Id.

(quoting 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1217). Here, the

objectionable material is in the secondary effects section, which is wholly omitted from the

original complaint. Therefore, rather than striking those portions of the Amended Complaint,

judicial energy is best conserved by striking the Amended Complaint in its entirety and allowing

the original complaint to stand. 

Ultimately, the excessive and inappropriate advocacy and evidentiary detail contained in

10
the massive Amended Complaint, which is only supposed to give notice to Defendants of the

claims against them, and the presence of an original complaint that contains the same claims and

parties presented in a significantly shorter fashion, leads to the conclusion that this is “the rare

case where a motion to strike should be granted.” Abbott v. Lockheed Martin Corp., No. 06-cv0701-MJR, 2007 WL 2316485, at *2 (S.D. Ill. Aug. 13, 2007). With the Amended Complaint

stricken, the original complaint will become the operative document, thereby preventing any

delay in this litigation and further supporting the striking of the Amended Complaint. Cf. id.

(declining to strike paragraphs from a complaint when doing so would merely serve to delay the

litigation, require plaintiffs to file an amended complaint, and postpone a trial on the merits). 

D. Conclusion

For the foregoing reasons, Defendants’ Motion to Strike Amended Verified Complaint

(Docket # 11) is GRANTED. The Amended Verified Complaint (Docket # 10) is hereby

STRICKEN. The originally filed Complaint (Docket # 1) therefore becomes the operative

complaint in this action.

SO ORDERED. 

Enter for this 29th day of May, 2013.

S/Roger B. Cosbey 

Roger B. Cosbey

United States Magistrate Judge

11