United States District Court, M.D. Florida, Fort Myers Division
SHERIPOLSTERCHAPPELL UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Plaintiff David Scott
Hastings' Motion to Amend Complaint (Doc. 42) filed on
July 13, 2018. In response, Defendants Eads, Destephanis and
Trask (collectively “Defendants”) filed a Motion
to Strike (Doc. 43) on July 19, 2018. Pending before the
Court is Defendants' Amended Motion to Dismiss (Doc. 41)
filed July 11, 2018. Pro se Plaintiff seeks leave to
amend his complaint pursuant to Fed.R.Civ.P.
15(a)(2). Plaintiff avers that he recently gained
access to his legal documents and can now accurately plead
his claim. Doc. 42 at 4.
is entitled to amend his pleading as a matter of right under
Fed.R.Civ.P. 15(a)(1) within 21 days of service of Rule
12(b)(6) motion, otherwise he may amend his “pleading
only with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). Leave to
amend is given freely “when justice so requires.”
Id. Absent a finding of “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of amendment”
the Court should grant leave “freely.” Foman
v. Davis, 371 U.S. 178, 182 (1962). Generally, a pro
se litigant must be given an opportunity to amend his
complaint. Johnson v. Boyd, 568 Fed.Appx. 719, 723
move to strike the Motion to Amend pursuant to Fed.R.Civ.P.
12(f) because Plaintiff failed to attach a copy of the
proposed amended complaint or explain what new claims he
intends to add to the proposed amended
complaint. Federal Rule of Civil Procedure 12(f)
provides, in pertinent part:
The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous
matter. . . .
on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days
after being served with the pleading.
Fed. R. Civ. P. 12(f). Rule 12(f) by its terms explicitly
provides that the object being stricken must be in a
“pleading.” “Only material included in a
‘pleading' may be the subject of a motion to
strike, and courts have been unwilling to construe the term
broadly.” Hawk v. Atlanta Peach Movers, Inc.,
2011 WL 1533024 *1 (N.D.Ga. 2011) (quoting 2 Moore's
Federal Practice, § 12.37  (Matthew Bender 3d
ed.)); see also, Pilgrim v. Trustees of Tufts
College, 118 F.3d 864, 868 (1st Cir. 1997)(motion to
strike improper for motions); Federal Rules Handbook
2018 at ¶ 488. The Federal Rules define a
“pleading” as a complaint; an answer to a
complaint, to a counterclaim, to a cross-claim; a third-party
complaint and an answer thereto; and, if ordered by the
court, a reply to an answer. Fed.R.Civ.P. 7(a).
“Motions, briefs or memoranda, objections, or
affidavits may not be attacked by the motion to
strike.” 2 Moore's Federal Practice,
§ 12.37 . Because Plaintiff's Motion to Amend is
not a pleading, Defendants' Motion to Strike is DENIED.
However, the Court will consider Defendants' Motion to
Strike insofar as it opposes Plaintiff's Motion.
See M.D. Fla. R. 3.01(b).
does not describe the substance of his proposed amendments,
nor does he attach a copy of the proposed second amended
complaint. See Long v. Satz, 181 F.3d 1275,
1279 (11th Cir. 1999) (“A motion for leave to amend
should either set forth the substance of the proposed
amendment or attach a copy of the proposed
amendment.”). See also Doe v. Pryor,
344 F.3d 1282, 1288 (11th Cir. 2003).Consequently,
the Court cannot discern whether the proposed amendment would
Plaintiff does not certify that he has conferred with
opposing counsel prior to filing the instant Motion. M.D.
Fla. R. 3.01(g). Defendants contend that it is
“impractical and impossible” to communicate with
Plaintiff due to his incarceration. Doc. 43 at 3. The Court
disagrees. The Court requires prisoners to adhere to the
procedural rules that govern cases before the Court,
notwithstanding their pro se status. Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989)
(“[O]nce a pro se IFP litigant is in court, he
is subject to the relevant law and rules of court, including
the Federal Rules of Civil Procedure.”). The Court
demands nothing less from parties represented by counsel.
Thus, all parties are forewarned that the failure to comply
with M.D. Fla. R. 3.01(g) in the future will result in the
noncomplying party's motion being stricken.
it is now
Plaintiff David Scott Hastings's Motion to Amend
Complaint (Doc. 42) is DENIED without
Defendants Emily DeStephanis, Dennis Eads, and Justin
Trask's Motion to Strike Plaintiff's ...