Binns v. Caesars Entertainment Corporation et al

Filing 25

ORDER denying 17 the Plaintiff, John Binns' Motion to Strike Defendants Notice of Removal. Signed by Judge Sheri Polster Chappell on 10/30/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN H. BINNS,
Plaintiff,
v.

Case No: 2:14-cv-506-FtM-38DNF

CAESARS
ENTERTAINMENT
CORPORATION,
CAESARS
ENTERTAINMENT
OPERATING
COMPANY, CAESARS WORLD,
INC., HARRAH’S ATLANTIC CITY
PROPCO, LLC and HARRAH’S
ATLANTIC
CITY
OPERATING
COMPANY, LLC,
Defendants.
/
ORDER1
This matter comes before the Court on the Plaintiff, John Binns' Motion to Strike
Defendants Notice of Removal (Doc. #17) filed on October 10, 2014. The Defendants
filed their Response in Opposition (Doc. #20) on October 21, 2014. The Motion is fully
briefed and ripe for the Court’s review.
Federal Rule of Civil Procedure 12(f) provides that the Court may order “any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” be
stricken from a pleading. Harvey v. Home Depot U.S.A., Inc., 2005 WL 1421170 (M.D.

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Fla. June 17, 2005). In evaluating a motion to strike, the court must treat all well pleaded
facts as admitted and cannot consider matters beyond the pleadings. Microsoft Corp. v.
Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002). A motion to
strike will usually be denied unless the allegations have no possible relation to the
controversy and may cause prejudice to one of the parties. Harvey, 2005 WL 1421170
(citing Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327, 1347 (M.D.
Fla. 1997).
Binns states that the Notice of Removal of his Amended Complaint to this Court
was improper and should be stricken. According to Binns, his Motion for Leave to
Amended the Complaint was never ruled upon by the State Court. Binn’s argues since
Motion for Leave to Amend was not ruled upon, the Amended Complaint was never
properly filed with the State Court. Binns concludes that since the Amended Complaint
was not properly pending in the State Court it could not properly be removed.
Binns further argues the Amended Complaint was improperly filed in State Court
because the Motion for Leave to Amend, was not accompanied by an attached copy of
the Amended Complaint. Binns states that it is the custom of Twentieth Judicial Circuit
to require the Amended Complaint to be attached to a motion for leave to amend.
The Defendants argue Binns’ Motion for Leave to Amend was only filed as a
precaution because a plaintiff may file an amended complaint in the Twentieth Circuit
Court without leave of court as long as no answer has been filed. The Defendants note
that they had not yet filed an answer to Binns’ Amended Complaint.
Pursuant to Fla. R. Civ. P. 1.190(a) a party may amend a pleading once as a matter
of course at any time before a responsive pleading is served.

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In this instance, no

responsive pleading was filed prior to Binns filing his Amended Complaint. Therefore,
Binns argument that the Motion for Leave to Amend was never ruled on lacks merit
because leave was not necessary. Furthermore, Binns’ Amended Complaint was date
stamped and filed with the Circuit Court of the Twentieth Judicial Circuit in and for Lee
County, Florida, on August 9, 2014, at 1:28pm. Thus, the Amended Complaint was
accepted by and properly filed with the Circuit Court. As such, the Motion to Strike the
Notice of Removal is due to be denied.
Accordingly, it is now
ORDERED:
The Plaintiff, John Binns' Motion to Strike Defendants Notice of Removal (Doc.
#17) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 30th day of October, 2014.

Copies: All Parties of Record

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