Opinion
CASE NO. 16-12101 PROC. NO. 18-1033
08-31-2018
IN RE: AMANDA LEE GARCIA Debtor NANCY J. GARGULA Plaintiff v. AMANDA LEE GARCIA Defendant
NOT FOR PUBLICATION
DECISION AND ORDER ON MOTION TO STRIKE
On August 31, 2018
The United States Trustee is the Plaintiff in this adversary proceeding which seeks the revocation of the Defendant/Debtor's discharge due to the refusal to comply with a turnover order obtained by the Chapter 7 trustee. The plaintiff has asked the court to strike the defendant's second amended answer, filed on July 6, 2018, because it was filed outside the parameters established by Rule 15 of the Federal Rules of Civil Procedure, which is made applicable to this proceeding by Bankruptcy Rule 7015. See, Fed. R. Bankr. P. Rule 7015; Fed. R. Civ. P. Rule 15(a). In that regard, the U.S. Trustee appears to be correct, although the court wonders why it went to the trouble of filing the motion and supporting brief. Having compared the second amended answer with the defendant's amended answer, it does not appear that offending filing says anything its predecessor did not. Instead, all that seems to have been done is to rearrange the contents of the prior pleading, by denominating as affirmative defenses allegations that had been made in response to the allegations in the plaintiff's complaint. See, Fed. R. Civ. P. Rule 8(c)(2) (mistakenly designated claims and defenses may treated as though properly designated). Nonetheless, there has been no response to the motion within the time required, see, N.D. Ind. L.B.R. B-7007-1, and the matter is now before the court for a decision.
The administration of the underlying bankruptcy case appears to be all but complete. The case trustee's final report and proposed distribution, which pays all claims in full and returns funds to the debtor, was deemed approved when the deadline for filing objections to it passed on August 22.
For example, the facts stated in connection with the second affirmative defense of waiver appear to be the same circumstances the defendant alleged in paragraph 6(a-c) of the amended answer. That also seems to be the case with regard to the first affirmative defense of accord and satisfaction (which may be just another label for the allegations of waiver). While that defense is an inadequate conclusory assertion, see, In re Angola Healthcare, LLC, 549 B.R. 886, 888 (Bankr. N.D. Ind. 2016) (affirmative defense are subject to the pleading requirements of Rule 8 and bare bones, conclusory allegations are insufficient), the previous pleading looks to have been much more specific with regard to what may have happened.
In addition to the circumstances identified in Rule 12(f), the function of a motion to strike is to remove things from the docket that did not deserve to be filed. That is where the requirements of Rule 15(a) come into play. They allow a party to amend a pleading "once as a matter of course within twenty-one after serving it." Fed. R. Civ P. Rule 15(a)(1)(A). Otherwise, an amendment requires the opposing party's written consent or leave of court. Id. at 15(a)(2). Here, the defendant already used its right to amend "as a matter of course," when it filed an amended answer on June 7. Accordingly, the second amended answer of July 6 required permission from either the plaintiff ("written consent") or the court ("the court's leave"). Defendant had neither.
Since the filing of the defendant's second amended answer did not satisfy the requirements of Rule 15(a), it was improper and should be removed from the docket. The motion to strike is GRANTED and the defendant's second amended answer is stricken.
SO ORDERED.
/s/ Robert E . Grant
Chief Judge, United States Bankruptcy Court