Opinion
Case No: 2:15-cv-138-FtM-38DNF
05-07-2015
KENNETH LEHMAN, Plaintiff, v. CHASE BANK USA, N.A., Defendant.
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This matter comes before the Court on Plaintiff's Motion to Strike Chase's Answer to the Complaint and Motion to Declare Lehman's Contract Complete and Enforceable (Doc. #14) filed on April 13, 2015. Federal Rule of Civil Procedure 12(f) allows a court to "strike from a pleading an insufficient defense or redundant, immaterial, impertinent, or scandalous matter." To that end, Fed. R. Civ. P. 7(a) defines a pleading as "(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) . . . a reply to an answer." Noticeably absent from this list, however, is a motion to dismiss. Therefore, because a motion to dismiss is not a pleading that can be stricken pursuant to Rule 12(f), Plaintiff's Motion must be denied. See In re Advanced Telecomm. Network , Inc., Case No. 6:03-BK-299-KSJ, 2010 WL 4363182, at *1 (M.D. Fla. May 10, 2010) (denying the plaintiff's motion to strike because a motion to dismiss is not a pleading, as defined by the Federal Rules of Civil Procedure).
Plaintiff titles his Motion as a "Motion to Strike Chase's Answer to the Complaint and Motion to Declare Lehman's Contract Complete and Enforceable." However, Defendant Chase Bank USA, N.A., has not filed an answer to Plaintiff's Complaint. Instead, Defendant has filed a Motion to Dismiss (Doc. #9). A review of the instant Motion reveals, and the Court will construe it as, the Plaintiff asking the Court to strike Defendant's Motion to Dismiss. Therefore, the Court will address the instant Motion by its requested relief, rather than its improper title.
Accordingly, it is now
ORDERED:
Plaintiff's Motion to Strike Defendant's Motion to Dismiss (Doc. #14) is DENIED.
DONE and ORDERED in Fort Myers, Florida, this 7th day of May, 2015.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record