IHOP IP, LLC et al v. International House of Prayer et al

Filing 47

SUGGESTIONS in opposition re 44 MOTION to amend/correct Summons Issued to International House of Prayer East Bay MOTION to strike Certain Affirmative Defenses filed by Diane L. Waters on behalf of Defendant the Prayer Furnace, Inc. Reply suggestions due by 2/21/2012 unless otherwise directed by the court (Related document(s) 44 ) (Waters, Diane)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IHOP IP, LLC and INTERNATIONAL
HOUSE OF PANCAKES, LLC

)
)
)
Plaintiffs,
)
)
vs.
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)
INTERNATIONAL HOUSE OF
)
PRAYER; et. al.
)
)
Defendants. )

Case No: 11-CV-00548-NKL

THE PRAYER FURNACE INC.’S RESPONSE
TO PLAINTIFF’S MOTION TO AMEND THE INITIAL
SUMMONS AND STRIKE CERTAIN AFFIRMATIVE DEFENSES
COMES NOW the Defendant The Prayer Furnace, Inc., by and through its
counsel of record, and hereby respectfully responds and objects to Plaintiff’s Motion to
Amend the Initial Summons and Strike Certain Affirmative Defenses.
Plaintiff’s Motion suggests that the initial summons should be amended due to a
misnomer and that defenses should be stricken as insufficient and inapplicable. Neither
of these proposals are appropriate under the circumstances, however, as explained
subsequently herein, Defendant does not object to Motion to Amend the Summons but
suggests it does not cure the service or Proof of Service defenses. Defendant does
object to the Motion to Strike Certain Affirmative Defenses.

I.

Striking Defenses

Plaintiff seeks to strike defenses related to improper service of process.

The

supporting argument is essentially an argument that the defenses are not winning
defenses.

The defendant, The Prayer Furnace, Inc., contends it was not properly
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served and the Proof of Service [Doc. 12] was not proper and does not reflect proper
service. The Prayer Furnace, Inc., was not even arguably a party to this lawsuit until
the Petition was recently amended [Doc. 33] and The Prayer Furnace, Inc. was added
as a Defendant. The first time The Prayer Furnace, Inc., filed any pleadings in this
matter, it immediately asserted improper service and correlating defenses [Doc. 35,
paragraphs 53 – 55]. Additionally, to the extent the Second Amended Complaint dates
back to the original filing, so does the Answer to the Second Amended Complaint – thus
making it a timely Answer.

With all of that stated, the success of those potential

defenses is not properly argued in a Motion to Strike.
“Although Court’s enjoy ‘broad discretion’ in determining whether to strike a party’s
pleadings, such an action is ‘an extreme measure’ and motions to strike are ‘viewed
with disfavor and infrequently granted.” Morgan v. Midwest Neurosurgeons, L.L.C., No.
1:11-CV-37 (CEJ), slip op. at 1 (E.D.Mo. 2011)(2011 WL 2731534), citing, Stanbury
Law Firm v. IRS, 221 F.#d 1059, 1063 (8th Cir. 2000). “Motions to strike are generally
disfavored ‘because they are often interposed to create a delay.’” Morgan, No. 1:11CV-37 (CEJ), slip op. at 1 (E.D.Mo. 2011)(2011 WL 2731534), citing, Van Schouwen v.
Connaught Corp., 782 F.Supp. 1240, 1245 (N.D.Ill. 1991).
Indeed, motions to strike can be nothing other than distractions. If a defense is
clearly irrelevant, then it will likely never be raised again by the defendant and can
be safely ignored. If a defense may be relevant, then there are other contexts in
which the sufficiency of the defense can be more thoroughly tested with the benefit
of a fuller record – such as on a motion for summary judgment
Id.

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Striking an affirmative defense is not appropriate “unless, as a matter of law, the
defense cannot succeed under any circumstances[.]”

Federal Deposit Ins. Corp. v.

Cable, 720 F.Supp. 748, 750 (E.D.Mo. 1989).
Plaintiffs properly note the rare exceptions when a motion to strike is an
appropriate remedy such as redundancy, immateriality, impertinent or scandalous
defenses [Doc. 45, p. 5]. None of these requirements have been satisfied in this case.
Upon being named as a defendant to this action, The Prayer Furnace, Inc.,
properly alleged that it was not properly served.

It continues to contend improper

service and an improper Proof of Service. The question of whether that defense is a
successful defense cannot be judged at this stage of the proceedings as there has been
no discovery on the question. Defendant respectfully contends that the evidence will
show a lack of proper service and a lack of a proper Proof of Service.

II.

Amending the Summons

With regard to the question of amending the summons, Defendant has no objection
to amending the summons but respectfully suggests that such amendment does not
cure the service and Proof of Service defenses asserted in the Answer filed by The
Prayer Furnace, Inc.

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Respectfully Submitted,
BENNETT, BODINE & WATERS, P.A.

/s/Diane L. Waters_________________
Diane L. Waters
MO 46255
11125 Johnson Drive, Suite A
Shawnee, KS 66203
913.948.7900 (Main); 913.948.7930 (Direct)
913.948.7901 (Facsimile)
Email: [e-mail]
ATTORNEY FOR DEFENDANT
THE PRAYER FURNACE, INC.

CERTIFICATE OF SERVICE
I hereby certify that on February 2, 2012, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which sent notification of such filing to
the following:
Elizabeth A. Tassi:
Mark McKay Iba:
Mark D. Hinderks:
Attorneys for Plaintiffs

[e-mail]
[e-mail]
[e-mail]

Keith J. Grady:
[e-mail]
Lauren E. Tucker McCubbin: [e-mail]
John M. Challis:
[e-mail]
Attorneys for International House of Prayer;
Friends of the Bridegroom, Inc.; Shiloh Ministries, Inc.;
and Mike Bickle

/s/ Diane L. Waters_________
Diane L. Waters

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