John Laschkewitsch as Administrator for the Estate of Ben Lachkewitsch v. The Lincoln National Life Insurance Company

Filing 56

ORDER DENYING 30 Plaintiff's Motion for Leave to Amend, GRANTING granting 39 Defendant's Motion to Strike, and GRANTING 42 Defendant's Motion to Strike. Plaintiff's documents filed at 34 and 38 are stricken from the record as having been improperly filed. Signed by US District Judge Terrence W. Boyle on 2/24/2014. Copy of order mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-315-BO
JOHN LASCHKEWITSCH as
administrator for the Estate of Ben
Laschkewitsch,
Plaintiff,
v.
LINCOLN LIFE AND ANNUITY
DISTRIBUTORS, INC., d/b/a LINCOLN
FINANCIAL GROUP, INC.
Defendant.

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ORDER

This cause comes before the Court on plaintiffs pro se motion for leave to amend his
pleadings and defendant's motions to strike. For the reasons discussed below, plaintiffs motion
is denied and defendant's motions to strike are granted.
BACKGROUND
Plaintiff filed this breach of contract action in Cumberland County Superior Court.
Defendant timely removed the action to this Court on the basis of its diversity jurisdiction. 28
U.S.C. §§ 1441; 1332. The matter relates to a life insurance policy issued to Ben Laschkewitsch,
now deceased; plaintiff is the administrator of the estate. Plaintiff contends that defendant has
refused to pay his claim for the life insurance proceeds in the amount of $800,000.
DISCUSSION
I.

PLAINTIFF'S MOTION TO AMEND

Plaintiffs motion for leave to amend his pleadings is denied. In his motion to amend,
plaintiff has not provided the Court with the proposed amendments he would make to his

pleadings. Though his motion for leave discusses in detail defendant's financial activities and its
participation in the TARP program, nowhere does plaintiff inform the Court how he seeks to
amend specifically selected sections of his complaint and his compulsory counterclaim. Without
knowing the substance of plaintiffs proposed amendments, the Court cannot grant plaintiff leave
to file.
Nor does the Court consider plaintiffs "ammended pleadings" [DE 34], filed prior to any
grant of leave to file an amended pleading, to serve as the proposed amendments to his pleadings.
Plaintiffs "ammended pleadings" include revisions to plaintiffs affirmative defenses, and are
unrelated to the proposed amendments relating to the TARP program and defendant's financial
activities as alleged in plaintiffs motion for leave to file.
Plaintiff is notified that where leave of court is required in order to file, as it is in this case
in order for plaintiffto amend his pleadings, see Fed. R. Civ. P. 15(a)(2), leave must be secured

prior to the filing of the proposed document and may not be assumed to be granted merely
because the Court has notified the party that it may seek leave to file.

II.

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S "AMMENDED PLEADINGS"

Rule 12(f) ofthe Federal Rules of Civil Procedure permits a court to strike a from a
pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter." As discussed above, because plaintiff had not secured leave to amend and because the
amendments filed do not relate to plaintiffs amendments as alleged in his motion for leave, the
document entitled "Plaintiffs Ammended Pleadings," filed at docket entry thirty-four (34), has
been improperly filed. Defendant's motion to strike this document is therefore granted. See e.g.

Daniels v. Nichols, 2011 WL 780528 *4 (E.D.N.C. 2011) (improper pleading stricken).

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Ill.

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S REPLY TO DEFENDANT'S ANSWER TO
PLAINTIFF'S COUNTERCLAIM
Defendant's second motion to strike is also granted. As the Court has previously noted in

this matter, Rule 7(a)(7) of the Federal Rules of Civil Procedure provides that a reply to an answer
may be filed only where the court has ordered one. The Court has not ordered plaintiff to reply to
defendant's answer, and thus defendant's motion to strike plaintiffs reply is granted.
CONCLUSION
For the foregoing reasons, plaintiffs motion for leave to amend [DE 30] is DENIED and
defendant's motions to strike [DE 39 & 42] are GRANTED. Plaintiffs documents filed at docket
entries thirty-four (34) and thirty-eight (38) are STRICKEN from the record as having been
improperly filed.
Though plaintiff is proceeding pro se and the Court may not hold him to the same
standards as an attorney, he is still expected to comply with the rules of procedure and is advised
to familiarize himself with both the Federal Rules of Civil Procedure and the Local Rules of this
Court before proceeding further in this matter.

SO ORDERED, this

J!f_ day of February, 2014.
NCE W. BOYLE
TE
UNITED STATES DISTRIC

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