Opinion
No. 78-1130C(2).
December 14, 1978.
Charles "Red" Warden, pro se.
Louis Jerry Weber, Thurman, Nixon, Smith, Howald, Weber Bowles, Hillsboro, Mo., for defendant.
MEMORANDUM
This matter is before the Court upon defendant's motion for summary judgment, and plaintiff's motion to strike defendant's affidavit in support of the above mentioned motion for summary judgment.
The Court finds no dispute as to any material fact, and further finds that defendant is entitled to judgment. Defendant is the official court reporter wherein plaintiff was tried on the charge of murder. Plaintiff's claim concerns the alleged delay by defendant in filing the transcript of the above mentioned trial on appeal. Initially, the Court notes that plaintiff himself requested the Missouri Court of Appeals to extend the time in which to file the transcript to December 1, 1978. The Court further finds that defendant's affidavit states that such transcript was filed on December 1, 1978. Plaintiff has not contested defendant's affidavit by a counter-affidavit, but has moved this Court to strike such affidavit on the grounds of Rule 15 of the Federal Rules of Civil Procedure, which rule applies to amended and supplemental pleadings.