Jenkins-Dyer v. Drayton et al

Filing 78

MEMORANDUM AND ORDER finding as moot and therefore denied 57 Defendants' Joint Motion for Extension of Time to File Responses to Plaintiff's Motion for Summary Judgment.; denying 59 Plaintiff's Motion to Strike Defendants Exxon a nd Garrison's Motions to Dismiss the Second Amended Complaint or, in the Alternative, Objection to Magistrate's Order, granting 74 and 72 Plaintiff's Motions for Leave to File Sur-Reply; denying without prejudice 30 Plaintiff's Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 8/28/14. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ISOKE N. JENKINS-DYER,
Plaintiff,
v.
ANITA L. DRAYTON WOOD,
EXXON MOBIL CORP., and
DOUGLAS F. GARRISON,
Defendants.

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Case No. 13-CV-2489-JAR

MEMORANDUM AND ORDER
Plaintiff Isoke N. Jenkins-Dyer, filed this pro se action against Defendants Anita L.
Drayton Wood, Exxon Mobil Corp. (“Exxon”), and Douglas Garrison, alleging breach of
fiduciary duty against Exxon and fraud against Drayton Wood and requesting proceeds from an
employee savings plan administered under ERISA. Before the Court are various pending
motions in the case.
Plaintiff initiated this action in state court, and Defendant Exxon removed the action to
this Court.1 Defendants Exxon and Wood filed motions to dismiss,2 and Plaintiff sought leave to
amend her complaint. 3 Before Plaintiff’s request for leave to amend her complaint was granted,
Plaintiff filed a motion for summary judgment,4 citing to her state court petition and a previous

1

Doc. 1 (Notice of Removal filed 9/18/2013).

2

Docs. 13, 15.

3

Doc. 23 (Motion for Leave to Amend Complaint filed 12/4/2013).

4

Doc. 30 (Motion for Summary Judgment filed 1/9/2014).

interpleader action,5 and filed a second motion for leave to amend her complaint.6 The
Magistrate Judge found the first motion to amend moot in light of the second motion, and
entered a Memorandum and Order granting in part and denying in part Plaintiff’s second motion
for leave to amend her complaint.7
Plaintiff filed her Second Amended Complaint on May 30, 2014.8 Defendants then filed
motions to dismiss Plaintiff’s Second Amended Complaint.9 The Court held that the previous
motions to dismiss the original complaint were moot.10 Defendants have filed a joint motion for
extension of time to respond to Plaintiff’s summary judgment motion,11 asking that they not be
required to respond to Plaintiff’s summary judgment motion until twenty-one days after the
Court rules on all pending motions to dismiss. Plaintiff opposes the motion for extension of
time, and has filed a motion to strike Defendants’ motions to dismiss the Second Amended
Complaint.12 Plaintiff has also filed motions for leave to file sur-replies in opposition to
Defendants’ motions to dismiss.13

5

D. Kan. Case No. 08-2129-KHV.

6

Doc. 37 (Second Motion for Leave to Amend Complaint filed 2/24/2014).

7

Doc. 47 (Memorandum and Order entered 5/27/2014).

8

Doc. 48.

9

Docs. 53, 55 and 58.

10

Doc. 63.

11

Doc. 57.

12

Doc. 59.

13

Docs. 72, 74.

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I.

Plaintiff’s Motion for Summary Judgment
Plaintiff’s Motion for Summary Judgment was filed on January 9, 2014, prior to her

filing her Second Amended Complaint. Defendants have not filed answers in this case, have not
responded to the motion for summary judgment, and have filed a joint motion seeking an
extension of time to respond to Plaintiff’s motion for summary judgment. In light of the posture
of this case and the pending motions to dismiss, the Court finds that Plaintiff’s motion for
summary judgment should be denied at this time without prejudice. If Plaintiff’s claims survive
this latest round of motions to dismiss, she may refile her summary judgment motion with proper
citations to the Second Amended Complaint. There is no dispositive motion deadline set in this
case. The Court’s ruling renders the Defendants’ joint motion for extension of time to respond
to the motion for summary judgment moot.
II.

Motion to Strike
Plaintiff seeks to strike Defendants’ motions to dismiss pursuant to Fed. R. Civ. P. 12(f),

arguing that the defenses stated by Defendants are “insufficient, redundant, immaterial and
impertinent.”14 Rule 12(f) provides that the Court may strike from a pleading “an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.”15
Plaintiff argues that the motions to dismiss her Second Amended Complaint are “based
upon arguments previously made and ruled upon, upon arguments which Defendants’ [sic] failed
to raise in their earlier Motions to Dismiss although those arguments were available then, and
upon groundless arguments contradicted by them in their own Memoranda.” Plaintiff then states

14

Doc. 59 at 1.

15

Fed. R. Civ. P. 12(f).

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that she is incorporating the arguments made in her responses to the pending motions to
dismiss.16 Lastly, Plaintiff argues that the Court should strike the motions to dismiss for failure
to attach the Memorandum in Support of the motions.
Plaintiff argues that the Court should strike the motions to dismiss because they are
either based upon arguments previously made and ruled upon in an earlier motion to dismiss or
arguments that they failed to make in those same motions. The Court denied the prior motions to
dismiss as moot because they were based upon the allegations in Plaintiff’s first Complaint.17
Plaintiff has since filed a Second Amended Complaint18 and the current motions seek dismissal
of the Second Amended Complaint. Plaintiff also states that the motion should be stricken for
the reasons stated in her response to motions before the court. A party’s opposition to the
arguments made in a dispositive motion is not an appropriate ground for striking. A response,
which Plaintiff has provided, is the appropriate avenue to challenge the arguments in the motions
currently pending before the Court. Finally, Plaintiff argues that the motion should be stricken
for Defendants’ failure to attach a brief to support the motion. Defendant Exxon filed a separate
brief to support its motion.19 Defendant Garrison incorporated the arguments from Exxon’s brief
into its motion.20 Accordingly, the Court declines to strike Defendants’ motions to dismiss.

III.

Plaintiff’s Motions to File Sur-replies
16

Doc. 59 at 2.

17

See Doc. 63.

18

See Doc. 48.

19

Doc. 54.

20

Doc. 58 at 2.

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Plaintiff claims that Defendants’ replies to their motions to dismiss include
“mischaracterizations and misstatements of facts and legal authorities.”21 Plaintiff’s motions for
leave to file sur-replies are governed by D. Kan. Rule 15.1. Under that rule, a party seeking
leave to file is to attach its proposed filing to the motion for the Court’s review. Plaintiff has
instead filed her proposed sur-replies.22 The Court is mindful that “if the court relies on new
materials or new arguments in a reply brief, it may not forbid the nonmovant from responding to
those new
materials.”23 The language challenged by Plaintiff consists of either Defendants’ arguments or
summaries of Plaintiff’s response brief arguments and it does not appear as though Defendants
have raised new factual materials or arguments in their reply briefs sufficient to necessitate a surreply. However, it appears as though Plaintiff has cited new authorities and made new
arguments in her filed sur-replies. Defendants have in turn responded to these arguments in their
Memorandums in Opposition to the motions for leave to file sur-replies. The Court is cognizant
of Plaintiff’s pro se status and the convoluted procedural history of this case. Accordingly, the
Court will allow Plaintiff leave to file the sur-replies, and will also consider Defendants’
responses. No further briefing will be allowed with regard to the pending motions to dismiss
(Docs. 53, 55 and 58) and the Court now considers these pending motions to dismiss under
advisement.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for

21

Doc. 72 at 1; Doc. 74 at 1.

22

Docs. 73 and 75.

23

Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006).

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Summary Judgment (Doc. 30) is DENIED WITHOUT PREJUDICE to refiling as set forth in
this Memorandum and Opinion.
IT IS FURTHER ORDERED BY THE COURT that Defendants’ Joint Motion for
Extension of Time to File Responses to Plaintiff’s Motion for Summary Judgment (Doc. 57) is
MOOT and therefore DENIED.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s Motion to Strike
Defendants Exxon and Garrison’s Motions to Dismiss the Second Amended Complaint or, in the
Alternative, Objection to Magistrate’s Order (Doc. 59) is DENIED.
IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s Motions for Leave to
File Sur-Reply (Docs. 72 and 74) are GRANTED.
IT IS SO ORDERED.
Dated: August 28, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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