Free Motion to Strike - District Court of Delaware - Delaware

Case 1:07-cv-00239-JJF

Document 89

Filed 07/03/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., FILED Plaintiff, :

: : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNION : : Defendants. :

C.A. No. 07-239 JJF

TRIAL BY JURY OF 12 DEMANDED

DEFENDANT DR. BINNON'S MOTION TO STRIKE PLAINTIFF RICHARD E. CLARK, JR.'S RESPONSE TO DEFENDANT PETER BINNON'S ANSWER TO THE COMPLAINT (D.I. 87) Pursuant to Federal Rule of Civil Procedure 12(f), Defendant Dr. Peter Binnon respectfully moves for entry of an order in the form attached hereto striking from the record Plaintiff Richard E. Clark, Jr.'s Response to Defendant Peter Binnon's Answer to the Complaint (D.I. 87), and in support of this Motion, states as follows: 1. On May 2, 2007 Plaintiff filed his Complaint alleging civil rights violations

against Raphael Williams, Lt. Sheets, and Mr. Smith. (D.I. 2) Movant was not a named defendant. (Id.) On June 25, 2007 Plaintiff filed his Amended Complaint which added as defendants Dr. McDonald and Jim Welch and dismissing Raphael Williams. (D.I. 8) The Amended Complaint did not name Movant, either. (Id.) On July 31, 2007 Plaintiff filed his Second Amended Complaint, this time purporting to add Movant as a defendant. (D.I. 11) On June 20, 2008, Dr. Binnon filed his Answer to the Complaint. (D.I. 84) On July 2, 2008, Plaintiff filed his Response to Defendant Peter Binnon's Answer to the

Case 1:07-cv-00239-JJF

Document 89

Filed 07/03/2008

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Complaint (D.I. 87). That document is an improper pleading and should be stricken from the record. 2. F.R.C.P. 12(f) provides, in pertinent part: (f) Motion To Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading. F.R.C.P 12(f) 3. F.R.C.P. governs Pleadings Allowed, and provides, in pertinent part: (a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers F.R.C.P. 7 4. As stated, Rule 7 enumerates the pleadings allowed, and does not include a

response to the answer to the complaint, unless the court orders one. The Court has not done so in this case, and Plaintiff has not petitioned for permission to file one. Consistent with Rule 12(f), this Motion has been filed within 20 days of service of the pleading at issue. WHEREFORE, Dr. Binnon respectfully requests the Court strike from the record Plaintiff Richard E. Clark, Jr.'s Response to Defendant Peter Binnon's Answer to the Complaint and all documents filed along with it.

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Case 1:07-cv-00239-JJF

Document 89

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BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Dr. Binnion Date: July 3, 2008

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Case 1:07-cv-00239-JJF

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Filed 07/03/2008

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 3rd day of July 2008, the foregoing Motion to Strike Plaintiff's Response to Defendant's Answer to the Complaint was filed via CM/ECF and served upon the following via the manner indicated:

FIRST CLASS MAIL Richard E. Clark Jr. SBI# 477726 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 CM/ECF FILING Erika Yvonne Tross, Esquire Department of Justice 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801

/s/ James E. Drnec James E. Drnec, Esquire (#3789)