Settle v. Executive Financial Consultants, Inc. et al

Filing 27

MEMORANDUM AND ORDER denying 21 Plaintiff's Motion to Supplement. Signed by Magistrate Judge Teresa J. James on 04/30/2014.Mailed to pro se party Jimmy D. Settle by regular mail (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JIMMY D. SETTLE,

)
)
Plaintiff,
)
)
v.
)
)
EXECUTIVE FINANCIAL
)
CONSULTANTS, INC., et al.,
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 13-2538-JTM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s “Motion and Memorandum in Support
Thereof to Supplement Pleadings Pursuant to Rule 15(a)(2)(d), Counterclaim Pursuant to Rule
13(A)(1)(a) Motion for a More Definite Statement and to Strike Specific Allegations in
Defendant’s Counter-Claim.”1 The relief which Plaintiff seeks in his motion is an order (1)
requiring Defendants to make a more definite statement; and (2) to strike certain portions of their
counterclaim. Contrary to its title, the motion is governed by Fed. R. Civ. P. 12(e) and (f). For
reasons stated below, the Court denies Plaintiff’s motion.
Plaintiff’s motion relates to paragraphs 37 through 41 of Defendants’ counterclaims.2
Those paragraphs set forth a claim for malicious prosecution. Plaintiff asks that Defendants be
required to make more definite and certain their allegations against him, which is a motion
properly brought under Fed. R. Civ. P. 12(e). Rule 12(e) states in relevant part as follows:
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

1

ECF No. 21.

2

See ECF No. 3.

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.3
Plaintiff does not allege that the paragraphs in question are “so vague or ambiguous that [he]
cannot reasonably prepare a response.” Indeed, Plaintiff did respond by filing an answer to
Defendants’ counterclaims.4 His motion is thus untimely, as the rule requires a party to file a
motion for more definite statement before filing a responsive pleading. Plaintiff was able to
frame an answer without further clarification from Defendants.5
Plaintiff also moves to strike paragraphs 37 through 41 of Defendants’ counterclaim
which he alleges are “confusing, immaterial, impertinent, scandalous, highly offensive, false,
defamatory, humiliating, character assassination & libelous.”6 Plaintiff provides no explanation
to support his conclusory allegations and the Court does not find that the paragraphs in question
contain such material. Rule 12(f), which permits a court to strike from a pleading “any
redundant, immaterial, impertinent, or scandalous matter,” also requires that such a motion to
strike must be filed before the moving party responds to the pleading.7 Thus, Plaintiff’s motion
is untimely under Rule 12(f), as well.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion and Memorandum in Support
Thereof to Supplement Pleadings Pursuant to Rule 15(a)(2)(d), Counterclaim Pursuant to Rule

3

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

4

See ECF No. 5.

5

See Clark v. Assocs. Commercial Corp., 149 F.R.D. 629, 633 (D. Kan. 1993) (denying
as untimely Rule 12(e) motion filed after party filed its responsive pleading).
6

ECF No. 21 at 1.

7

See Fed. R. Civ. P. 12(f).
-2-

13(A)(1)(a) Motion for a More Definite Statement and to Strike Specific Allegations in
Defendant’s Counter-Claim” (ECF No. 21) is denied.
IT IS SO ORDERED.
Dated April 30, 2014.
s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

-3-