United States District Court, D. Kansas
NEONATAL PRODUCT GROUP, INC., Plaintiff/Counterclaim Defendant,
JANICE M. SHIELDS, PAUL W. SHIELDS, and ANGELE INNOVATIONS, LLC, Defendants/Counterclaimants,
CRECHE INNOVATIONS, LLC, MILLENNIUM MARKETING GROUP, LTD., and SCOTT A. NORMAN, Counterclaim Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
December 21, 2016, defendants and counterclaimants Janice M.
Shields and Paul W. Shields, individually and as trustees of
the Shields Family Trust, and Angele Innovations, LLC
(collectively, “the Shields Defendants”) filed a
Motion for Leave to File a Second Amended Answer and
Counterclaims to Add Party. Doc. 138. As required by our
court's local rule, D. Kan. Rule 15.1(a)(2), the Shields
Defendants attached their proposed Second Amended Answer and
Counterclaims to their motion. Doc. 138-2. On March 17, 2017,
the court granted the Shields Defendants' motion and
ordered them to file their Second Amended Answer and
Counterclaims within 10 days. Doc. 153 at 7.
Shields Defendants filed a Second Amended Answer and
Counterclaims on March 27, 2017. Doc. 154. But, this pleading
differs from the proposed pleading that they submitted to the
court with their Motion for Leave. Specifically, paragraph 22
of the Answer portion of the proposed pleading reads:
“Admitted.” Doc. 138-2 at 3 (Proposed Second
Amended Answer and Counterclaims ¶ 22). But, paragraph
22 of the Answer portion in the filed pleading states:
“Admitted that the parties entered into a Letter of
Intent; denied as to the other allegations in this
paragraph.” Doc. 154 at 3 (Second Amended Answer and
Counterclaims ¶ 22).
and counterclaim defendant Neonatal Product Group, Inc. and
counterclaim defendants Creche Innovations, LLC, Millenium
Marketing Group, Ltd., and Scott A. Norman (collectively,
“Neonatal”) have filed a Motion to Strike
Defendants' Second Amended Answer and Counterclaim. Doc.
156. Neonatal asks the court to strike this pleading under
Fed.R.Civ.P. 12(f), Fed.R.Civ.P. 15, and D. Kan. Rule 15.1,
because the Shields Defendants filed it without leave of
court. Neonatal argues that, with this filing, the Shields
Defendants are attempting to withdraw an admission of fact
made in their two other Answers. Doc. 30 at 3 (Answer and
Counterclaims ¶ 19); Doc. 53 at 3 (Amended Answer and
Counterclaims ¶ 22). Neonatal also argues that the
Shields Defendants are trying to change a fact to which they
stipulated in the Pretrial Order. Doc. 143 at 4 (Pretrial
Order ¶ 2(a)(18)). Neonatal asserts that this admission
plays a key role in the pending Motion for Partial Summary
Judgment. And, Neonatal asserts, the court should strike the
filed pleading because the Shields Defendants never obtained
leave of court to file this version of their Second Amended
Answer and Counterclaim.
15(a)(1) allows a party to amend a pleading once as a matter
of course within 21 days after serving it on the opposing
party or within 21 days after service of a responsive
pleading or a motion under Rule 12(b), (e), or (f).
Fed.R.Civ.P. 15(a)(1). If the amendment falls outside of that
period of time, Rule 15(a)(2) provides that the party may
only amend a pleading with leave of the court or with the
opposing party's written consent. Fed.R.Civ.P. 15(a)(2).
The rule also provides that the court “should freely
give leave when justice so requires.” Id.
the Shields Defendants never requested leave of court to file
the version of their Second Amended Answer and Counterclaims
that they actually filed on March 27, 2017. Doc. 154.
Instead, the court granted the Shields Defendants leave under
Rule 15(a)(2) to file a different version of that pleading.
See Doc. 153 (granting the Shields Defendants leave
to file their Proposed Second Amended Answer and
Counterclaims (Doc. 138-2)).
Shields Defendants respond, arguing that their filed pleading
does not violate Rule 15 or D. Kan. Rule 15.1. They contend
that the court granted them leave to file an amended
pleading, and that the amended pleading they filed just makes
a “clarification” to one of their admissions.
Doc. 161 at 2. The court disagrees. The filed amended
pleading makes a substantive change to one of the Shields
Defendants' admissions. It is more than a clarification.
Shields Defendants also argue that this
“clarification” is necessary to respond to
Neonatal's untimely assertion of an
accord-and-satisfaction affirmative defense in their Motion
for Partial Summary Judgment. Doc. 161 at 2. Whatever the
Shields Defendants' reason for making this change, the
federal and local rules do not authorize them to file an
amended pleading unilaterally. To the contrary, the Shields
Defendants must obtain leave of court before filing an
amended pleading. See Fed. R. Civ. P. 15(a)(2);
see also D. Kan. Rule 15.1.
court routinely strikes amended pleadings that parties have
filed without first seeking and procuring the requisite leave
of court. See, e.g., Brown v.
Couchman, No. 04-2209-KHV, 2004 WL 2607551, at *9 (D.
Kan. Nov. 16, 2004) (granting a motion to strike an amended
complaint because plaintiff did not seek leave of court or
defendants' consent before filing the pleading);
Vasquez v. Johnson Cty. Housing Coalition, Inc., No.
03-2147-CM, 2003 WL 21479186, at *1 (D. Kan. June 16, 2003)
(striking plaintiff's amended complaint because
“[p]laintiff had neither leave of court nor written
consent of the opposing party to assert additional counts in
his Amended Complaint”); Jarrett v. Sprint/United
Mgmt. Co., No. 97-2487-EEO, 1998 WL 560008, at *1 (D.
Kan. Aug. 17, 1998) (explaining that the court previously had
granted defendant's motion to strike plaintiff's
amended complaint because plaintiff had failed to file a
motion seeking leave to file an amended pleading). Because
the court never granted the Shields Defendants leave to file
the version of the Second Amended Answer and Counterclaims
that they have filed, the court follows the same procedure
here. The court thus strikes the pleading.
THEREFORE ORDERED BY THE COURT THAT Neonatal's Motion to
Strike Defendants' Second Amended Answer and Counterclaim
(Doc. 156) is granted. The court strikes the Second Amended
Answer and Counterclaims (Doc. 154). The court orders the
Shields Defendants to file the Proposed Second Amended Answer
and Counterclaims ...