Estes v. Burnside et al

Filing 15

ORDER denying 13 Plaintiff's Motion for More Definite Statement. Defense counsel should forthwith email or fax Plaintiff's counsel advising in exact detail why defense counsel believes service has been insufficient. A copy of this email or fax should be sent to the Clerk of the Court & to me, attention Ms. Genoveva Gilbert. Signed by Judge Billy Roy Wilson on 9/13/2011. (jct)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

TONIA ESTES
v.

PLAINTIFF
3:11CV00109-BRW

DAVID BURNSIDE, Individually and in his
Official Capacity as Police Officer for the City
of Walnut Ridge, et al.

DEFENDANTS

ORDER
Pending is Plaintiff’s Motion For More Definite Statement (Doc. No. 13). Defendants
David Burnside and the City of Walnut Ridge, Arkansas (“Defendants”) have responded.1 For
the reasons set out below, Plaintiff’s Motion is DENIED.
Plaintiff’s Complaint alleges that Defendants violated Plaintiff’s civil rights.2
Defendants’ Answer asserts multiple affirmative defenses.3 Defendants’ Answer reads, in
relevant part: “[s]eparate Defendants affirmatively assert Insufficiency of Service as a defense.”4
Plaintiff filed a response to Defendants’ affirmative defenses, denying them all except for
insufficiency of service.5 With respect to insufficiency of service, Plaintiff asks the Court to
order Defendant to provide “more and certain . . . allegations” so that any defects can be cured
before the time allowed for service expires.6

1

Doc. No. 14.

2

Doc. No. 1.

3

Doc. No. 12.

4

Id.

5

Doc. No. 13.

6

Id.
1

Federal Rule of Civil Procedure 12(e), which governs motions for a more definite
statement, is not the proper means for challenging the sufficiency of an affirmative defense. Rule
12(e) reads:
A party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response. The motion must be made before filing a responsive
pleading and must point out the defects complained of and the details desired. If the
court orders a more definite statement and the order is not obeyed within 14 days
after notice of the order or within the time the court sets, the court may strike the
pleading or issue any other appropriate order.7
Rule 7(a) of the Federal Rules of Civil Procedure provides that “[o]nly these pleadings are
allowed: (1) a complaint; (2) an answer to a complaint; . . . and (7) if the court orders one, a
reply to an answer.”8 A plaintiff is not permitted to file a responsive pleading to a defendant’s
answer, including affirmative defenses, unless the court orders a plaintiff to do so.9 Generally, a
district court will order a reply to a defendant’s answer only when the answer raises a new
matter, or, for example, contains a counter-claim.10

7

Fed. R. Civ. P. 12(e). See also Perry v. Wal-Mart Stores, East, L.P., No. 4:09-CV-1373
CDP, 2009 U.S. Dist. Lexis 104418, at *1-2 (E.D. Mo. Nov. 9, 2009) (denying motion for more
definite statement of affirmative defenses); Wells v. Farmers Alliance Mut. Ins. Co.,
No. 2:07-CV-00036-ERW, 2008 Dist. Lexis 24628, at *10-11 (E.D. Mo. Mar. 27, 2008)
(denying motion for more definite statement of affirmative defenses).
8

Fed. R. Civ. P. 7(a).

9

See Kansas-Nebraska Natural Gas Co. v. Village of Deshler, 192 F. Supp. 303 (D.C.
Neb. 1960), affirmed 288 F.2d 717.
10

See 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1185 (3d ed. 2004).
2

I have not ordered Plaintiff to file a responsive pleading to Defendants’ answer or
affirmative defenses. Accordingly, there is no basis for Plaintiff’s pleading, and no grounds on
which to grant Plaintiff’s motion. Plaintiff’s Motion is DENIED.
The above is my technical order which may be somewhat didactic. Here is what should
occur -- defense counsel should forthwith (like today or tomorrow) email or fax Plaintiff’s
counsel advising Plaintiff’s counsel in exact detail why defense counsel believes service has
been insufficient. A copy of this email or fax should be sent to the Clerk of the Court and to me,
attention Ms. Genoveva Gilbert. In other words, let’s get this matter out of the way here and
now.
IT IS SO ORDERED this 13th day of September, 2011.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

3