Savage v. Finney et al

Filing 46

OPINION AND ORDER The court DENIES the defendants motions to strike DE 42 and 43 and GRANTS Savage leave to amend his complaint nunc pro tunc. Signed by Magistrate Judge Andrew P Rodovich on 10/19/11. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
VIRGIL SAVAGE,

)
)
Plaintiff
)
)
v.
)
)
DR. LEON D. FINNEY, JR.;
)
GEORGETTE FINNEY; WOODLAWN COMM.)
DEV. CORP.; OFFICERS and BOARD )
COLLECTIVELY and INDIVIDUALLY; )
THE WOODLAWN ORG.; CLARENCE
)
NIXON; CLARENCE NIXON CONSULTING)
MANNING & SILVERMAN CO.; MOARIJ )
KHAN & RESNIK GROUP,
)
)
Defendants
)

CIVIL NO. 2:11 cv 100

OPINION AND ORDER
This matter is before the court on the Motion to Strike
Plaintiff’s Amended Complaint for Failure to Seek Leave as
Required by F.R.C.P. 15(a) [DE 42] filed by the defendant, Manning & Silverman, Ltd., on August 26, 2011, and the Motion to
Strike [DE 43] filed by the defendants, Clarence Nixon and CNC
Group, on August 29, 2011.

For the following reasons, the

motions are DENIED.
Background
The plaintiff, Virgil Savage, filed his complaint in state
court on February 4, 2011.

The defendants removed this matter to

federal court on March 17, 2011.
Silverman, Ltd., filed an answer.

On March 25, 2011, Manning &
The defendants, CNC Group, LLC

and Clarence Nixon, filed motions to dismiss or, in the alternative, to transfer venue and for a more definite statement on
March 31, 2011.

On April 6, 2011, Woodlawn Community Development

Corporation filed a motion to dismiss for improper venue, or
alternatively, to transfer, to dismiss Count III, to dismiss the
WCDC defendants in their individual capacities, and for a more
definite statement.

Savage’s attorney, John H. Davis, was unable

to access the court’s electronic filing system when the case
first was removed and never received notice that any defendant
had filed anything other than a motion to dismiss, transfer, and
for a more definite statement.

Davis represents that he never

received a copy of Manning & Silverman’s answer via U.S. Mail.
On August 15, 2011, Savage filed an amended complaint
without seeking leave of court. Savage’s amended complaint set
forth two additional counts against all defendants.

The defen-

dants, Manning & Silverman, CNC Group, and Clarence Nixon, move
to strike Savage’s amended complaint for failure to seek leave of
court as required by Federal Rule of Civil Procedure 15(a).
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);

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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 In-

tern., 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.
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.

After an

answer is filed, the plaintiff must seek leave of court to amend
his complaint if more then 21 days have passed since he served
his complaint.

Leave to amend a pleading is "freely given when
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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 move to strike Savage’s amended complaint for
failure to comply with Rule 15(a).

Manning & Silverman filed its

answer on March 25, 2011, and more than 21 days later, Savage
filed an amended complaint without seeking leave of court.

In

his response, Savage acknowledges his failure to comply with Rule
15(a), explaining that he was unaware that Manning & Silverman
filed an answer prior to filing its motions to dismiss.

Savage

asks the court for leave to amend his complaint nunc pro tunc.
The defendants did not file a response in objection.

Although

the proper action would have been for Savage to file a motion to
amend, the defendants were afforded an opportunity to oppose
Savage’s request, and did not object.
The court finds no reason to deny Savage’s request.

Savage

made a timely request, and this matter is not so procedurally
advanced to cause the defendants prejudice. The court has yet to
hold a Rule 16(b) conference, and discovery has not commenced. In
the interests of justice and efficiency, the court DENIES the
defendants’ motions to strike, [DE 42, 43] and GRANTS Savage
leave to amend his complaint nunc pro tunc.

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See Fausset v.

Mortgage First, LLC, 2010 WL 1212085, *4 (N.D. Ind. March 23,
2010)(declining to strike pleading where party failed to seek
leave to amend).
ENTERED this 19th day of October, 2011

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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