United States District Court, D. Kansas
MARK E. IDSTROM, Plaintiff,
GERMAN MAY, PC, CHARLES W. GERMAN, BRANDON J.B. BOULWARE, DANIEL HODES, and JOHN DOES 1-10, Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge.
the Court is Defendants' Motion to Strike (ECF No. 33).
Specifically, Defendants ask the Court to strike several
paragraphs from Plaintiff's Complaint because “they
are immaterial in light of this Court's August 30,
2019” order granting in part Defendants'
motion to dismiss, and that responding to the dismissed
claims “would place an undue burden” on
them.Plaintiff has filed a response in
opposition arguing Defendants have already filed their Answer
to his Complaint, so the motion to strike is moot, and
further, removing the dismissed paragraphs “could be
construed as Plaintiff waiving his appellate rights with
regard to the dismissed claims, which he has not
done.” For the reasons discussed below, the Court
denies the motion.
August 30, 2019, the Court dismissed Counts II and III of
Plaintiff's Complaint, leaving Plaintiff's legal
malpractice claim in Count I as the sole remaining claim.
However, the Court noted deficiencies with Count I and
stated: if Plaintiff “seek[s] to amend his Complaint to
address the defects with respect to his legal malpractice
claim, he is directed to file for leave to amend under D.
Kan. Rule 15.1 within fourteen (14) days of the date
of this Order.” Plaintiff never sought leave to
amend his Complaint. Defendants sought and received an
extension of time to answer Plaintiff's Complaint, which
they did on September 20, 2019,  prior to filing the motion
at issue and after the 14-day deadline for Plaintiff to
request leave to amend had passed.
contend the paragraphs in Counts II and III have no possible
relation to Plaintiff's remaining claim under Count I and
should be stricken. The only authority Defendants cite in
support of their position is Fed.R.Civ.P. 12(f), and an
Eastern District of Tennessee case noting that courts have
found “the resubmission of
previously-dismissed counts to be
immaterial.” Plaintiff cites no authority for his
Court finds the order of dismissal was clear⎯Counts II
and III are dismissed with prejudice, and if Plaintiff wanted
to amend Count I of his Complaint to address the deficiencies
noted in the order, he needed to do so within 14 days of the
order. Plaintiff chose not to seek leave to amend his
Complaint. Nothing in Judge Robinson's order
required Plaintiff to amend his Complaint, and
Defendants cite no authority to suggest Plaintiff was
required to amend his complaint to include only Count I. The
authority Defendants do cite relates to resubmission of
dismissed claims. Plaintiff did not resubmit any claims and
will be precluded from reasserting the dismissed claims at
trial by the order of dismissal. Further, Fed.R.Civ.P. Rule
12(f) is permissive, not mandatory. Additionally, Defendants
have already answered Plaintiff's Complaint, so any
alleged hardship is moot.
Defendants request that the Court strike 77
paragraphs/subparagraphs scattered throughout the Complaint,
including some in the factual background section, without any
showing that those factual allegations are immaterial to
Count I. The Court will not require Plaintiff to edit his
Complaint in that fashion. For all these reasons,
Defendants' motion is denied.
IS THEREFORE ORDERED BY THE COURT that
Defendants' Motion to Strike (ECF No. 33) is denied.
IS SO ORDERED.
 ECF No. 33 at 1.
 Id. at 3.
 ECF No. 34 at 1-2.
 ECF No. 29 at 36-37 (emphasis in the