Free Motion to Strike - District Court of Delaware - Delaware

Case 1:04-cv-01392-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WALLACE E. HARDEN Plaintiff, v. GOVERNOR RUTH ANN MINNER, ET AL., Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 04-1392-JJF JURY TRIAL DEMANDED

MOTION TO STRIKE COME NOW, Defendants Michael Knight and Christopher Klein, pursuant to F.R.C.P.7(a) and 15, and move the Court for an order striking Plaintiff's Amended Complaint and Reply to the Defendant's First Amended Answer (D.I. 25 and D.I. 26) for the following reasons: 1. F.R.C.P. 7(a) allows for a complaint and an answer; a reply to a counterclaim; an

answer to a cross-claim; and third-party complaint and answer. 2. F.R.C.P. 15 allows a party to amend the pleadings once before a responsive

pleading is filed. "Otherwise a party many amend the party's pleading only by leave of Court or by written consent of the adverse party . . .". 3. In this action, the federal rules do not allow for plaintiff's reply to the defendant's

answer as there is not a counterclaim, cross-claim, or third-party complaint. Nor is there a Court Order allowing for such a pleading. Accordingly, Defendants request that this Court strike plaintiff's Reply to the Defendant's First Amended Answer. 4. Defendants answered the plaintiff's Amended Complaint on December 21, 2006

and filed an amended answer on December 22, 2006 (D.I. 22 and 23). As such, the federal rules

Case 1:04-cv-01392-JJF

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require leave of the Court before plaintiff can file an amended complaint. Further, plaintiff's new Amended Complaint (D.I. 25) appears to be only copies of the first two pages of his original Amended Complaint (D.I. 14) and identical copies of Exhibits A-1 and A-3. The only difference being the addition of Exhibit A-2, which was missing from plaintiff's original Amended Complaint. 5. To the extent that plaintiff only seeks to correct this deficiency and add Ex. A-2,

the defendants do not oppose the correction. To the extent that plaintiff seeks to amend the Complaint absent leave of the Court, defendants are opposed to such amendment. For the aforementioned reasons, Defendants request this Honorable Court strike Plaintiff's Amended Complaint and Reply to the Defendant's First Amended Answer (D.I. 25 and D.I. 26).

DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stacey Xarhoulakos_____ Stacey Xarhoulakos, # 4667 Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, De 19801 (302) 577-8400 Dated: January 22, 2007 Attorney for Defendants Michael Knight and Christopher Klein

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Case 1:04-cv-01392-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WALLACE E. HARDEN Plaintiff, v. GOVERNOR RUTH ANN MINNER, ET AL., Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 04-1392-JJF JURY TRIAL DEMANDED

ORDER And now this ___________ day of ___________, 2007, having considered the defendants' Motion to Strike and any opposition thereto, IT IS HEREBY ORDERED that defendants Motion to strike is granted.

_______________________________ Judge Joseph J. Farnan, Jr.

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CERTIFICATE OF SERVICE I hereby certify that on January 22, 2007, I electronically filed Defendants' Motions to Strike with the Clerk of Court using CM/ECF. I hereby certify that on January 22, 2007, I have mailed by United States Postal Service, the document to the following non-registered participant: Wallace E. Harden SBI # 146818 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ Stacey Xarhoulakos Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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