Swoope v. Gary Community School Corporation et al
Filing
98
OPINION AND ORDER granting 93 RULE 12(f) MOTION to Strike 87 2nd Amended Complaint. The 87 2nd Amended Complaint is stricken. Signed by Magistrate Judge Andrew P Rodovich on 1/14/13. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DR. DAVID L. SWOOPE, JR.,
Plaintiff
v.
GARY COMMUNITY SCHOOL
CORPORATION; DR. MYRTLE
CAMPBELL, DR. CORDIA MOORE, in
their official and individual
capacities,
Defendants
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CIVIL NO. 2:10 cv 423
OPINION AND ORDER
This matter is before the court on the Motion to Strike
Plaintiff’s Second Amended Complaint [DE 93] filed by the defendants, Gary Community School Corporation, Dr. Myrtle Campbell, and
Dr. Cordia Moore, on October 24, 2012.
For the reasons set forth
below, the motion is GRANTED.
Background
The plaintiff, Dr. David L. Swoope, Jr., filed his complaint
on October 25, 2010, alleging various federal claims including
gender discrimination, retaliation, harassment, hostile work
environment, and deprivation of due process. Swoope also raised
various state law claims including breach of contract, defamation, and tortious interference with his contract with Indiana
University Northwest ("IUN").
The defendants timely filed an
answer.
On March 24, 2012, Swoope moved to amend his complaint
and was granted leave to amend.
He filed his amended complaint
on May 17, 2012, and the defendants moved to dismiss Swoope’s
amended complaint for failure to state a claim.
On August 28,
2012, the court granted the motion to dismiss in part and denied
it in part.
The defendants proceeded to file an answer to
Swoope’s amended complaint on September 7, 2012.
On September
24, 2012, Swoope filed a motion to reconsider the court’s ruling
on the motion to dismiss and an amended complaint.
The defen-
dants now move to strike Swoope’s second amended complaint for
failure to obtain leave of court.
Discussion
Motions to strike generally are disfavored, but may be
granted if they remove unnecessary clutter from a case and
expedite matters, rather than delay them. Heller Financial, Inc.
v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989);
Doe v. Brimfield Grade School, 552 F.Supp.2d 816, 825 (C.D. Ill.
2008). The decision whether to strike material is within the
discretion of the court. Talbot v. Robert Matthews Distrib. Co.,
961 F.2d 654, 665 (7th Cir. 1992). An amended pleading may be
stricken for failure to comply with the Federal Rules of Civil
Procedure, specifically Rule 15(a). See Videojet Systems Intern.,
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Inc. v. Inkjet, Inc., 1997 WL 124259, *6–7 (N.D. Ill. March 17,
1997). Rule 15(a)(1) states:
A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which
a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after
service of a motion under Rule
12(b), (e), or (f), whichever is
earlier.
In all other cases, the party must obtain the opposing party’s
written consent or seek leave of court.
Rule 15(a)(2).
For
purposes of the rule, a motion to dismiss does not constitute a
responsive pleading.
Foster v. DeLuca, 545 F.3d 582, 583–84 (7th
Cir. 2008).
The plaintiff may amend his pleading at any time after a
motion to dismiss is filed, as a matter of right, provided it
precedes the answer. See Foster, 545 F.3d at 584.
However, a
plaintiff uses up that right when he first amends his complaint.
See Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991);
Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 203 (7th
Cir. 1985).
A complaint may be amended only once as a matter of
course, regardless of whether the original amendments are technical or substantive.
Rodgers, 771 F.2d at 203.
amendments require leave of court.
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Any further
Perkins, 939 F.2d at 471.
Leave to amend a pleading is "freely given when justice so
requires." Rule 15(a). Permission to amend should be granted
absent any evidence of bad faith, dilatory motive, undue delay,
or unfair prejudice to the opposing party. Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
The defendants have moved to strike Swoope’s amended complaint for failure to comply with Rule 15(a).
Swoope contends
that he was entitled to file his second amended complaint as a
matter of course because he filed it within 21 days of receiving
the defendants’ answer.
However, Swoope previously filed an
amended complaint on May 17, 2012, and Rule 15(a) only permits
the plaintiff to file one amended complaint as a matter of right.
Any subsequent amendments must be made by leave of court or with
the defendants’ consent.
Swoope has not filed the requisite motion for leave to amend
his complaint, nor did he request leave in his response to the
defendants’ motion to strike.
For this reason, the court GRANTS
the defendants’ motion to strike and STRIKES Swoope’s second
amended complaint [DE 87].
If Swoope desires to amend his
complaint, he must file the proper motion and supporting memorandum, which would afford the defendants the opportunity to oppose
the proposed amended complaint.
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ENTERED this 14th day of January, 2013
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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