United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Joint Motion to Strike
Plaintiffs' Second Amended Complaint. (Doc. 31.) For the
reasons discussed below, Defendants' Motion is
Elbert and Kay Kirby (“Plaintiffs”) are pro
se litigants proceeding in forma pauperis.
(Doc. 4.) They filed their initial complaint in this
proceeding on April 25, 2017 (Doc. 2), and filed a First
Amended Complaint (“FAC”) pursuant to Federal
Rule of Civil Procedure 15(a)(1)(B) (“Rule
15(a)(1)(B)”) on December 5, 2017, in lieu of a
response to two motions to dismiss. (Doc. 27.) Defendants
filed motions to dismiss the FAC on December 18 and 19, 2017.
(Docs. 28 and 29.)
filed a Second Amended Complaint (“SAC”) on
January 9, 2018. (Doc. 30.) Defendants filed a Joint Motion
to Strike the SAC on January 12, 2018, alleging that
Plaintiffs failed to comply with Federal Rule of Civil
Procedure 15(a)(2) (“Rule 15(a)(2)”) by failing
to seek Defendants' written consent or leave of the Court
to file the SAC, and that this failure and the associated
delay have prejudiced them. (Docs. 31 and 36.) Plaintiffs do
not dispute that they failed to comply with Rule 15(a)(2),
but state in their Response that they “had not realized
that the final cause of action was left off and subsequently
attempted to cure this by filing their Third [sic] Amended
Complaint to properly address the immunity claims.”
(Doc. 34.) In the SAC, Plaintiffs added the
“Twenty-Sixth Cause of Action: Fraud and Identity
Theft, 18 U.S.C. § 1028 & 21 Okla. Stat. 21-1533,
” as well as sentences to at least paragraphs 28, 32,
Motion to Strike Standard
Rule of Civil Procedure 12(f) (“Rule 12(f)”)
permits the Court to strike “any redundant, immaterial,
impertinent or scandalous matters” from a pleading.
“Striking a pleading or part of a pleading is a drastic
remedy and because a motion to strike may often be made as a
dilatory tactic, motions to strike under Rule 12(f) generally
are disfavored.” Oilfield Improvements, Inc. v.
Coston, No. 10-CV-577-TCK-TLW, 2012 U.S. Dist. LEXIS
68104, at *3 (N.D. Okla. May 15, 2012) (internal citations
omitted); see 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1382
(3d. ed. 2012). Motions to strike “should be denied
unless the challenged allegations have no possible relation
or logical connection to the subject matter of the
controversy and may cause some form of significant prejudice
to one or more of the parties to the action.” Wright
& Miller, supra, § 1382; see Parker v.
City of Tulsa, No.16-cv-0134-CVE-TLW, 2016 U.S. Dist.
LEXIS 149669, at *3 (N.D. Okla. Oct. 28, 2016). Prejudice
includes the increased time and expense required to conduct
discovery or prepare for trial on an irrelevant contention.
See Parker, 2016 U.S. Dist. LEXIS 149669, at *3. For
example, in Parker, the Court granted a motion to
strike plaintiff's guilt as an affirmative defense, as
guilt could not legally constitute an affirmative defense.
Finally, regardless of whether the moving party has
demonstrated that the allegations contained in the pleading
violate Rule 12(f), the Court still possesses the discretion
to grant or deny the motion. See Big Cats of Serenity
Springs, Inc. v. Vilsack, 84 F.Supp.3d 1179, 1198 (D.
Colo. 2015); see also Wright & Miller,
supra, § 1382 (the district court possesses
considerable discretion in disposing of a Rule 12(f) motion);
SFF-TIR, LLC v. Stephenson, 250 F.Supp.3d 856, 978
(N.D. Okla. 2017).
case, Defendants claim that they have been prejudiced by
Plaintiffs' disregard of procedural rules in filing the
SAC in violation of Rule 15(a)(2), and the associated delay.
Though it is undisputed that Plaintiffs have failed to comply
with Rule 15(a)(2), neither Plaintiffs' violations of
procedural rules nor the delay associated with
Plaintiffs' amendments are sufficient to demonstrate the
prejudice necessary to sustain a Motion to Strike. Unlike in
Parker, Defendants did not raise the argument that
Plaintiffs' additional claims could not legally
constitute claims.Accordingly, Defendants can adequately
address any deficient causes of action in their Motions to
Dismiss. Moreover, due to the Parties' Joint Motions to
Extend the Joint Status Report Deadline (Docs. 19, 24, 32,
37, 39, and 41), the parties have not yet undertaken any
discovery. The early procedural posture of this case, as well
as the limited nature of the amendments, indicate that
Defendants will not be required to invest significant
additional time in appropriately responding to any new
contentions in the SAC. Accordingly, Defendants have not
McNeil v. Post does not require a different result.
See No. 15-cv-478-JHP-PJC, 2016 U.S. Dist. LEXIS
69099, at *3. In McNeil, the plaintiff filed three
Amended Complaints. The first of these complaints, in
addition to “virtually repeating the allegations in the
first three pages of his original complaint” and adding
no new claims, also failed to attach a certificate of
service. The subsequent amended complaints, which plaintiff
filed in violation of Rule 15(a)(2), purported to bring
criminal charges against various defendants. In light of
plaintiff's disregard for procedural rules, including
both violations of Rule 15(a)(2) and failure to attach any
proof of service, as well as the absence of legal basis for
the criminal allegations to remain on the record, the court
granted defendant's motion to strike all three amended
case, however, Plaintiffs' pleadings counsel a different
result. Unlike in McNeil, Plaintiffs' FAC was
timely filed pursuant to Rule 15(a)(1)(B). Similarly, though
Plaintiffs did violate Rule 15(a)(2) when they filed the SAC,
they did attach a Certificate of Service to their filing.
Finally, Plaintiffs' SAC does add new claims and facts,
which Defendants have not shown to be legally insufficient.
The court's decision in McNeil falls short of
requiring that every Amended Complaint filed in violation of
Rule 15(a)(2) be stricken. In this case, due to
Plaintiffs' addition of new claims and facts, their
attachment of a Certificate of Service, and Defendants'
failure to allege that there is no legal basis for
Plaintiffs' new claims, Defendants have not demonstrated
the prejudice demonstrated in McNeil. Accordingly,
McNeil does not change the Court's conclusion
that Defendants have not demonstrated prejudice sufficient to
sustain a motion to strike. Defendants' Joint Motion to
Strike is DENIED.
the Court will accept Plaintiffs' SAC, the Court advises
Plaintiffs that if they should seek to make any further
amendment, they will be required to comply with Rule 15(a)(2)
by filing a motion for leave to amend that states (1) whether
Defendants consent to the amendment; and (2) if Defendants
have not consented to the amendment, why justice requires the
amendment. Any such motion must further state (1) the
deadline date established by the scheduling order, if any,
and (2) whether any other party objects to the motion.
See LCvR 7.2(1). The Court will not accept any
further complaints unless Plaintiffs present compelling
circumstances that require further amendment.