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

Filing 49

REPLY SUGGESTIONS to motion re 44 MOTION to amend/correct Summons Issued to International House of Prayer East Bay MOTION to strike Certain Affirmative Defenses filed by Elizabeth A. Tassi on behalf of Plaintiffs IHOP IP, LLC, International House of Pancakes, LLC. (Related document(s) 44 ) (Tassi, Elizabeth)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IHOP IP, LLC et al.,
Plaintiffs,
vs.
INTERNATIONAL HOUSE OF PRAYER
et al.,
Defendants.

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Case No.: 4:11-cv-00548-NKL

REPLY SUGGESTIONS IN SUPPORT OF MOTION TO
AMEND INITIAL SUMMONS AND
STRIKE CERTAIN AFFIRMATIVE DEFENSES
I.

East Bay's Suggestion that It Requires Discovery on Its Defenses Relating to
Improper Service Does Not Save the Defenses from Being Insufficient and
Inapplicable.
East Bay consents to IHOP's requested amendment of the initial summons but

opposes the motion to strike its affirmative defenses relating to service of process on the
grounds that discovery is needed. East Bay's opposition to the motion to strike lacks merit.
East Bay has not articulated any factual basis for its defenses and has failed to state how
discovery would make any difference (indeed, it possesses the facts concerning how it was
served). See Lucas v. Jerusalem Café, LLC, No. 4:10-cv-00582-DGK, 2011 WL 1364075, at *2
(W.D. Mo. Apr. 11, 2011) (holding defendants to the same pleading standards as plaintiffs with
respect to affirmative defenses because "the purpose of pleading requirements is to provide
enough notice to the opposing party that indeed there is some plausible, factual basis for the
assertion and not simply a suggestion of possibility that it may apply to the case.") Significantly,
East Bay does not contest that it previously waived service [Doc. 4], does not challenge the
competency of the process server, does not dispute the authority of its treasurer who accepted

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service, and does not identify any other feature of the process or service thereof that was
improper. Given the facts of the case (as provided in numbered paragraphs 1-13 of IHOP's
opening brief [Doc. 45]) and East Bay's consent to amend the initial summons to reflect its
official rather than trade name, there are no facts that could form a plausible basis for its
affirmative defenses. As such, East Bay's assertions remain "threadbare recitals" that fail to
provide enough notice that there is some plausible, factual basis for the defense. See Lucas,
2011 WL 1364075 at *2. Accordingly, the affirmative defenses relating to service of process
should be stricken.
II.

East Bay's Consent to the Amendment of the Initial Summons Completes the
Technical Corrections Necessary in a Misnomer Situation.
When a true misnomer situation arises, where the plaintiff has named and served the right

defendant by the wrong name, it is appropriate for the plaintiff to amend the pleadings and the
court to amend the initial summons. Roberts v. Michaels, 219 F.3d 775, 778-79 (8th Cir. 2000).
IHOP has corrected the misnomer in the Second Amended Complaint, which relates back to the
First Amended Complaint. As explained in IHOP's opening brief, IHOP served East Bay with
process and the First Amended Complaint out of an abundance of caution despite the waiver of
service by its former counsel. Thus, only the initial summons remains to be corrected to name
the defendant by its official name. East Bay has consented to IHOP's request to amend the initial
summons. With the corrected pleadings and documents on file, service of the First Amended
Complaint on East Bay should be considered service of the First Amended Complaint on The
Prayer Furnace, Inc.
III.

Conclusion
For all the reasons given above and in IHOP's Suggestions in Support of its motion,

IHOP respectfully requests that the Court amend the initial summons under Rule 4(a) such that

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service on International House of Prayer East Bay is effective as to The Prayer Furnace, Inc. and
strike the insufficient and inapplicable affirmative defenses in paragraphs 53 and 54 of East
Bay's answer asserting improper service of process and an improper return of service.
Respectfully submitted,

/s/Elizabeth A. Tassi
Mark D. Hinderks (MO Bar No. 58124)
Mark M. Iba (MO Bar No. 45452)
Elizabeth A. Tassi (MO Bar No. 59621)
STINSON MORRISON HECKER LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
[phone] (telephone)
[phone] (facsimile)
Attorneys for Plaintiffs
IHOP IP, LLC and INTERNATIONAL HOUSE
OF PANCAKES, LLC

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CERTIFICATE OF SERVICE
I hereby certify that on February 16, 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:
Keith J. Grady
John M. Challis
Karen M. Zelle
POLSINELLI SHUGHART PC
100 S. Fourth Street, Suite 1000
St. Louis, MO 63102
[e-mail]
[e-mail]
[e-mail]
Lauren Tucker McCubbin
POLSINELLI SHUGHART PC
120 West 12th Street, Suite 1800
Kansas City, MO 64105
[e-mail]
ATTORNEYS FOR DEFENDANTS
INTERNATIONAL HOUSE OF PRAYER,
FRIENDS OF THE BRIDEGROOM, INC.,
SHILOH MINISTRIES, INC. AND MIKE BICKLE

Diane Waters
BENNETT, BODINE & WATERS, P.A.
11125 Johnson Drive
Shawnee, KS 66203
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Defendant
THE PRAYER FURNACE, INC.
d/b/a INTERNATIONAL HOUSE OF
PRAYER EAST BAY

/s/Elizabeth A. Tassi
Attorney for Plaintiffs

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