Hawkins v. Jewish Federation of Greater Kansas City, Inc.

Filing 7

MEMORANDUM AND ORDER denying 6 Defendant's Verified Motion to Strike Pursuant to Rule 12(f)(2). The court lacks jurisdiction and therefore denies the motion. Signed by Magistrate Judge Teresa J. James on 1/11/2018. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BLAIR HAWKINS,
Plaintiff,
v.
JEWISH FEDERATION OF GREATER
KANSAS CITY, INC.,
Defendant.

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Case No. 17-cv-02585-JAR-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Verified Motion to Strike Pursuant to
Rule 12(f)(2) (ECF No. 6). Defendant requests that the Court strike portions of Plaintiff’s
Complaint1 on the grounds that Plaintiff’s allegations of sexual harassment are prejudicial and
improperly harmful to the reputations of Defendant and Defendant’s Chief Executive Officer,
Dr. Helene Lotman.2 Defendant argues these portions of the Complaint are scandalous
allegations subject to being stricken as provided by Federal Rule of Civil Procedure 12(f)(2).
Because the court lacks jurisdiction over the action, Defendant’s motion is denied.
Procedural Background
Plaintiff filed his complaint on October 9, 2017, alleging one count of sex discrimination
and harassment and one count of retaliation, both of which are actionable under Title VII.3

1

ECF No. 1.

2

Specifically, Defendant seeks to strike the following paragraphs from Plaintiff’s Complaint: 13,
14, 15, 16, 18, 31, and 32, as well as Exhibits A and B.

3

42 U.S.C § 2000e.

On November 3, 2017, Plaintiff filed a Stipulation of Dismissal Without Prejudice,4
citing Federal Rule of Civil Procedure 41(a)(1)(A)(i). Although the clerk of court had issued
summons for Plaintiff to serve upon Defendant along with the Complaint, the court record does
not indicate that Plaintiff ever effectuated service of process on Defendant, and Defendant filed
nothing before Plaintiff filed his dismissal.
Analysis
Federal Rule of Civil Procedure 12(f)(2) provides that “the court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter
… on motion made by a party either before responding to the pleading or, if a response is not
allowed, within 21 days after being served with the pleading.”5 Defendant argues that its motion
is timely in that Defendant was never served by Plaintiff with the Complaint, but it provides no
legal authority to support the argument.
On November 3, 2017, Plaintiff filed a document entitled Stipulation of Dismissal
Without Prejudice in which he stipulated to the complete dismissal of the Complaint without
prejudice pursuant to Rule 41(a)(1)(A)(i).6 Defendant claims that it neither offered nor paid any
money or anything else of value to Plaintiff in exchange for the dismissal of the case and that the
parties did not execute an oral or written settlement agreement.

4

ECF No. 4.

5

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

6

ECF No. 4.

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Under Rule 41(a)(1)(A)(i), Plaintiff has an absolute right to dismiss his claims without
prejudice and no action is required on the part of the court.7 As the Tenth Circuit has held:
The [filing of a Rule 41(a)(1)(i) notice]8 itself closes the file. There is nothing the
defendant can do to fan the ashes of that action into life and the court has no role
to play. This is a matter of right running to the plaintiff and may not be
extinguished or circumscribed by adversary or court. There is not even a
perfunctory order of court closing the file. Its alpha and omega was the doing of
the plaintiff alone. The effect of the filing of a notice of dismissal pursuant to Rule
41(a)(1)(i) is to leave the parties as though no action had been brought. Once the
notice of dismissal has been filed, the district court loses jurisdiction over the
dismissed claims and may not address the merits of such claims or issue further
orders pertaining to them.9
Plaintiff voluntarily dismissed this action. Upon dismissal, this court was divested of
jurisdiction over Plaintiff’s claims. Accordingly, the court is precluded from addressing the
merits of Defendant’s motion.
IT IS THEREFORE ORDERED THAT Defendant’s Verified Motion to Strike
Pursuant to Rule 12(f)(2) (ECF No. 6) is DENIED.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 11th day of January, 2018.
s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

7

Janssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003).

8

Rule 41 was amended in 2007 and the relevant language now appears in Rule 41(a)(1)(A)(i).

9

Id. (quoting Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir.
2001)) (emphasis added). See also Schmier v. McDonald’s LLC, 569 F.3d 1240, 1242-43 (10th
Cir. 2009); Netwig v. Georgia-Pacific Corp., 375 F.3d 1009, 1010-11 (10th Cir. 2004).

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