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Pryor v. Hurley

July 7, 2006

ANTHONY PRYOR, ET AL., PLAINTIFFS,
v.
PAT HURLEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Norah McCann King Magistrate Judge

JUDGE JOHN D. HOLSCHUH

OPINION AND ORDER AND REPORT AND RECOMMENDATION

This is a 42 U.S.C. § 1983 action brought by Anthony Harper ("plaintiff") who is an inmate at the Ross Correctional Institution ("RCI") in Chillicothe, Ohio. This matter is currently before the Court on plaintiff's motion for default against the Clerk of Courts, Juvenile Division, Fairfield County Court of Common Pleas Diana Steckman in her individual capacity ("Plaintiff's Motion for Default against Steckman"), Doc. No. 15, plaintiff's motion to strike a motion to dismiss filed by certain defendants, ("Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss"), Doc. No. 16, plaintiff's motion to strike the answer filed by Steckman in her individual capacity ("Plaintiff's Motion to Strike Steckman's Answer"), Doc. No. 23, and plaintiff's motion for summary judgment on his claims against Steckman ("Plaintiff's Motion for Summary Judgment against Steckman"), Doc. No. 25.

For the reasons that follow, Plaintiff's Motion to Strike Defendants' Motion to Dismiss and Plaintiff's Motion to Strike Steckman's Answer are both DENIED and the Court RECOMMENDS that Plaintiff's Motion for Default against Steckman and Plaintiff's Motion for Summary against Steckman both be DENIED.

I. RELEVANT BACKGROUND

Plaintiff filed the Complaint in this action on October 13, 2005. Doc. No. 1. In the Complaint, plaintiff named, among others, the Clerk of Court for the Juvenile Division of the Fairfield County Court of Common Pleas. On November 9, 2005, plaintiff supplemented the Complaint with the name of the Clerk of that court, Diana Steckman. Doc. No. 3. Plaintiff represents that service of process was made, by certified mail, on the ODRC defendants on November 4, 2005, Doc. No. 8, and on defendant Steckman on November 17, 2005. Doc. No. 10.

On November 23, 2005, an answer was filed on behalf of, inter alia, the "Fairfield County Clerk of Courts, Juvenile Division." Doc. No. 6. On December 16, 2005, plaintiff filed Plaintiff's Motion for Default against Steckman, requesting an entry and judgment of default against Steckman in her individual capacity for failure to timely respond to the Complaint. Doc. No. 15. On January 9, 2006, Steckman filed an answer to the Complaint in her individual capacity, Doc. No. 20. On January 19, 2006, plaintiff filed Plaintiff's Motion to Strike Steckman's Answer, arguing that it had not been timely filed. Doc. No. 23.

On December 1, 2005, defendants Pat Hurley, Robert Whitten, Linda Coval, Cheryl Martinez and Reginald Wilkinson ["the ODRC defendants"] filed a motion to dismiss ("ODRC Defendants' Motion to Dismiss"). Doc. No. 10. On December 16, 2005, plaintiff filed a motion to strike this motion, arguing that it had not been timely filed. Doc. No. 16. These defendants filed a response to plaintiff's motion to strike on December 20, 2005. Doc. No. 17.

On May 11, 2006, plaintiff filed Plaintiff's Motion for Summary against Steckman, again based on her alleged failure to timely file her answer. Doc. No. 25.

II. DISCUSSION

Plaintiff contends that he is entitled to an order striking the ODRC Defendants' Motion to Dismiss and striking Steckman's answer in her individual capacity for being untimely filed; he also asks for default or summary judgment against Steckman, again, for her asserted untimely filing of her answer. The Court disagrees.

A. Plaintiff's Motions to Strike

First, plaintiff moves this Court under Fed. R. Civ. P. 12(f) for an order striking Steckman's answer because it was not timely filed. Doc. No. 23. Second, in a "praecipe," plaintiff asks the Clerk of this Court to "dismiss" from its docket the ODRC Defendants' Motion to Dismiss because it was not timely filed. Doc. No. 16. Although plaintiff does not indicate the authority for this request of the Clerk, the Court will accept the "praecipe" as a motion to strike under Fed. R. Civ. P. 12(f).

Rule 12(f) provides, "upon motion made by a party . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Because striking a pleading is a drastic remedy, such motions are generally viewed with disfavor and are rarely granted. AT&T Global Information Solutions Co. v. Union Tank Car Co., 1997 U.S. Dist. LEXIS 6090, C2-94-876, 1997 WL 382101 (S.D. Ohio Mar. 31, 1997) (citing Brown and Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)); Morrow v. South, 540 F. Supp. 1104, 1111 (S.D. Ohio ...


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