United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA
J. JAMES UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Defendant's Verified Motion
to Strike Pursuant to Rule 12(f)(2) (ECF No. 6). Defendant
requests that the Court strike portions of Plaintiff's
Complaint[1] on the grounds that Plaintiff's
allegations of sexual harassment are prejudicial and
improperly harmful to the reputations of Defendant and
Defendant's Chief Executive Officer, Dr. Helene
Lotman.[2] Defendant argues these portions of the
Complaint are scandalous allegations subject to being
stricken as provided by Federal Rule of Civil Procedure
12(f)(2). Because the court lacks jurisdiction over the
action, Defendant's motion is denied.
Procedural
Background
Plaintiff
filed his complaint on October 9, 2017, alleging one count of
sex discrimination and harassment and one count of
retaliation, both of which are actionable under Title
VII.[3]
On
November 3, 2017, Plaintiff filed a Stipulation of Dismissal
Without Prejudice, [4]citing Federal Rule of Civil Procedure
41(a)(1)(A)(i). Although the clerk of court had issued
summons for Plaintiff to serve upon Defendant along with the
Complaint, the court record does not indicate that Plaintiff
ever effectuated service of process on Defendant, and
Defendant filed nothing before Plaintiff filed his dismissal.
Analysis
Federal
Rule of Civil Procedure 12(f)(2) provides that “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.”[5] Defendant argues that its motion is timely
in that Defendant was never served by Plaintiff with the
Complaint, but it provides no legal authority to support the
argument.
On
November 3, 2017, Plaintiff filed a document entitled
Stipulation of Dismissal Without Prejudice in which he
stipulated to the complete dismissal of the Complaint without
prejudice pursuant to Rule 41(a)(1)(A)(i).[6] Defendant claims
that it neither offered nor paid any money or anything else
of value to Plaintiff in exchange for the dismissal of the
case and that the parties did not execute an oral or written
settlement agreement.
Under
Rule 41(a)(1)(A)(i), Plaintiff has an absolute right to
dismiss his claims without prejudice and no action is
required on the part of the court.[7] As the Tenth Circuit has
held:
The [filing of a Rule 41(a)(1)(i) notice][8] itself closes the
file. There is nothing the defendant can do to fan the ashes
of that action into life and the court has no role to play.
This is a matter of right running to the plaintiff and may
not be extinguished or circumscribed by adversary or court.
There is not even a perfunctory order of court closing the
file. Its alpha and omega was the doing of the plaintiff
alone. The effect of the filing of a notice of dismissal
pursuant to Rule 41(a)(1)(i) is to leave the parties as
though no action had been brought. Once the notice of
dismissal has been filed, the district court loses
jurisdiction over the dismissed claims and may not address
the merits of such claims or issue further orders pertaining
to them.[9]
Plaintiff
voluntarily dismissed this action. Upon dismissal, this court
was divested of jurisdiction over Plaintiff's claims.
Accordingly, the court is precluded from addressing the
merits of Defendant's motion.
IT
IS THEREFORE ORDERED THAT Defendant's Verified
Motion to Strike Pursuant to Rule 12(f)(2) (ECF No. 6) is
DENIED.
IT IS
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