Free Motion to Strike - District Court of Arizona - Arizona

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Joseph A. Kendhammer, SBN 009156 Jeanne E. Varner Powell, SBN 017535 Kendhammer & Colburn, L.L.P. 394 North Third Avenue Phoenix, Arizona 85003 (602) 340-9900 Attorneys for Defendants Mesa General Hospital Medical Center, L.P.

IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Wyvonna M. Barnett
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Plaintiff,
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vs. Mesa General Hospital Defendant.

) ) ) Case No. CV032566 PHX ROS ) ) ) MOTION TO STRIKE PLAINTIFF' S ) AMENDED COMPLAINT ) ) ) ) ) )

Defendant Mesa General Hospital Medical Center L.P. [" Mesa General" moves ] this Court to strike the Amended Complaint recently filed by Plaintiff. Out of an abundance of caution, MGH has filed an Answer in response to what can be liberally construed as a medical malpractice claim set forth on pages 1 and 2. However, the entire Amended Complaint is

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riddled with procedurally inappropriate and legally insufficient material which should be
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stricken from the Court' record. s MEMORANDUM OF POINTS AND AUTHORITIES I. The " Summary" Rule 8(a) of the Federal Rules of Civil Procedure requires that a Complaint set forth a " short and plain statement" of the claims for relief.
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Rule 8(e) requires that " [e]ach

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averment of a pleading shall be simple, concise, and direct." Rule 10(b) requires that claims be set forth in separately numbered paragraphs with averments limited to a statement of a single set of circumstances. Plaintiff' amended complaint does not comply with any of these Rules s because she has attached a rambling, nine page " summary"that is procedurally improper. In the event the Court does not strike the entire Amended Complaint, at the very least the " summary"

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should be stricken because it contains rambling statements about a multitude of topics that have
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no place in a Complaint. II. Demands for Specific Monetary Amounts In addition, Plaintiff' various demands for specific monetary amounts must be s stricken from page 2 of the Complaint because they violate A.R.S. section 12-566. Section 12566 provides that " dollar amount or figure shall be included in the complaint"in any medical no malpractice action against a licensed healthcare provider. III. No Stated Basis for Punitives Finally, this Court should strike the sentence on page 2 which reads " These damages are in addition to punitive damages decided by jury." Plaintiff does not include any statements setting forth a factual or legal basis for a punitive damages claim. Rule 8(a) requires a short, plain statement showing that Plaintiff is entitled to make such a claim under the

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applicable law.

Arizona law provides for punitives only where plaintiff can prove that a

defendant acted with an " mind and aggravated and outrageous conduct." See Linthicum v. evil Nationwide Life Ins. Co., 150 Ariz. 326, 331, 723 P.2d 675, 680 (1986). An " mind"may be evil shown by evidence that the defendant intended to injure the plaintiff or " consciously pursued a course of conduct knowing that it created a substantial risk of harm to others."See Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578. Plaintiff does not make such allegations

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because, over two years of litigation, no evidence has surfaced to support such allegations. Therefore, all references to punitives should be stricken.

DATED this ____ day of October, 2005. KENDHAMMER & COLBURN, L.L.P.

/s_________________________________ Joseph A. Kendhammer Jeanne E. Varner Powell Attorneys for Defendant Mesa General Hospital, L.P. dba Mesa General Hospital Medical Center

ORIGINAL and one copy delivered this ____ day of October, 2005 to: Clerk of Court Hon. Roslyn O. Silver Copy of the foregoing mailed this ___ day of October, 2005, to: Wyvonna M. Barnett 506 East McKamey Payson, AZ 85541 Plaintiff Pro Per _________________________

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