Summary
striking an unauthorized amended pleading
Summary of this case from Ambrose Packaging, Inc. v. Flexsol Packaging Corp.Opinion
CIVIL ACTION No. 03-2147-CM
June 16, 2003
MEMORANDUM AND ORDER
Pending before the court is defendant's Motion to Dismiss and/or Strike plaintiff's Amended Complaint (Doc. 7) for failure to comply with Rule 15 of the Federal Rules of Civil Procedure. As set forth below, defendant's motion is granted.
I. Background
On April 16, 2003, defendant filed its answer to plaintiff's complaint and electronically served plaintiff's counsel. Plaintiff then filed an Amended Complaint without obtaining leave of the court on April 18, 2003. Defendant asserts that it did not consent to allow defendant to file an amended complaint without leave. Plaintiff does not oppose defendant's motion.
II. Legal Standard
Federal Rule of Civil Procedure 12(f) gives courts the power "[u]pon motion made by a party before responding to a pleading" to strike any pleading in part or in its entirety. Rule 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . [o]therwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party."
III. Analysis
Defendant moves the court to strike plaintiff's Amended Complaint in accordance with Rule 12(f). Plaintiff has not responded to defendant's motion. Because plaintiff filed his Amended Complaint two days after defendant filed its answer, plaintiff's amendment falls outside of the permissive filing period. A plaintiff may amend the complaint after a defendant has served a responsive pleading "only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). Generally, if an amendment requiring permission of the court or the opposing party is served without obtaining the court's leave or opposing party's consent, it is without legal effect and will not be considered by the court. Dole v. Reynolds, No. Civ. A. 89-4007-S, 1990 WL 186269, at *1 (D.Kan. Oct. 2, 1990) (citing Straub v. Desa Indus., Inc., 88 F.R.D. 6, 8 (M.D.Pa. 1980)). Where a plaintiff does not have leave to amend portions of his complaint, those portions should be stricken. Sheldon v. Vermonty, No. Civ. A. 98-2277-JWL, 2002 WL 598333, at *1 (D.Kan. Mar. 4, 2002). Plaintiff had neither leave of court nor written consent of the opposing party to assert additional counts in his Amended Complaint. Accordingly, the court strikes plaintiff's Amended Complaint.
IT IS THEREFORE ORDERED THAT Defendant's Motion to Strike plaintiff's Amended Complaint (Doc. 7) is granted.