Somerset Pharmaceuticals, Inc. v. Kimball

168 F.R.D. 69, 36 Fed. R. Serv. 3d 1010, 1996 U.S. Dist. LEXIS 10790, 1996 WL 419859
CourtDistrict Court, M.D. Florida
DecidedJuly 5, 1996
DocketNo. 94-247-CIV-T-17A
StatusPublished
Cited by17 cases

This text of 168 F.R.D. 69 (Somerset Pharmaceuticals, Inc. v. Kimball) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Somerset Pharmaceuticals, Inc. v. Kimball, 168 F.R.D. 69, 36 Fed. R. Serv. 3d 1010, 1996 U.S. Dist. LEXIS 10790, 1996 WL 419859 (M.D. Fla. 1996).

Opinion

ORDER ON MOTIONS

KOVACHEVICH, Chief Judge.

This cause comes before the Court on the following Motions: (1) Plaintiffs Motion to Strike all of Defendant Kimball’s Pleadings (Dkt. No. 277), and Defendant’s response (Dkt. No. 280); and (2) Defendant James T. Kimball’s Motion to Strike Plaintiffs Motion to Strike all of Defendant Kimball’s Pleadings, (Dkt. No. 280) and Plaintiffs response thereto (Dkt. No. 284).

FACTS

Plaintiff Somerset Pharmaceuticals, Inc. filed a multi-count Complaint against Defendant James T. Kimball and several other Defendants on June 4, 1993, alleging violations of: (a) Federal Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. Sec. 1961 through 1968; (b) Chapter 895 Fla. Stat., Offenses Concerning Racketeering and Illegal Debts; (c) Fla.Stat. See. 772.103(3) and (4), Civil Remedies for Criminal Practices Act; (d) Section 43 of the Lanham Act, 15 U.S.C. sec. 1125(a) and (b); (e) Fla.Stat. Sec. 817.41, Misleading Advertising; (f) unfair and deceptive trade practices in violation of Part II, Chapter 501, Fla.Stat. Sec. 501.201 et seq.; (g) intentional interference with advantageous business relations under the common law of the State of Florida; (h) an accounting and restitution for unjust enrichment under the common law of the State of Florida; and (i) claims under the common law of the State of Florida for damages resulting from Defendants’ statutory violations.

Shortly thereafter, Defendant retained Attorney Bruce G. Howie to represent him and other Defendants in this action. On May 2, 1994, Attorney Howie filed a Motion to Withdraw as Counsel for Defendant Kimball. However, Attorney Howie continued to represent other defendant parties in this action. On the same day, Defendant filed a Motion to Appear Pro Se in the litigation. On May 11, 1994, this Court granted both Howie’s Motion to Withdraw as Counsel for Defendant and Defendant’s Motion to Appear Pro se. In May of 1995, Attorney Nancy Lord was also retained by one of the other Defendants, and has been active in the litigation since that time.

On March 28, 1996, Plaintiff filed a Motion to Strike (Dkt. No. 277). On April 8, 1996, Defendant filed a Motion to Strike (Dkt. No. 284). Plaintiff alleges in its Motion to Strike that all of Defendant’s pleadings should be stricken because: 1) Defendant is pretending [71]*71to proceed pro se in this litigation while at the same time benefiting from unidentified counsel in the preparation and formulation of his legal arguments and the writing of the actual pleadings; and 2) Defendant’s subterfuge is grossly unfair to the Court, and prejudices the Plaintiff by taking advantage of the lenient standard afforded to pro se litigants.

Defendant responds: 1) Defendant recognized a possible conflict of interest for Attorney Howie, and as a result Attorney Howie filed a Motion to Withdraw as counsel for Defendant; 2) that due to financial constraints, Defendant requested to proceed pro se, which was granted; 3) Defendant maintains that he had formerly participated in the legal research and formulation of legal arguments with the attorneys in this litigation before proceeding pro se; 4) Defendant maintains that he is the final writer of his pleadings and has utilized Plaintiff’s own style of pleading in this litigation as a guide for the production of his pleadings; and 5) that there is no prejudice to the Plaintiff under the more lenient pro se standard afforded to the Defendant.

Defendant alleges in his Motion to Strike that Plaintiff’s Motion to Strike all of Defendant’s pleadings should be stricken because: 1) the motion is in violation of Fed.R.Civ.P. 12(f) because more than 20 days, as prescribed by the rule, has elapsed since the last pleading of the Defendant was filed; 2) there is no federal rule or federal case law which supports Plaintiff’s request for such sweeping relief; and 3) the Plaintiffs motion was filed in bad faith intended to cause undue delay and the harassment of the Defendant.

Plaintiff responds: 1) Defendant’s seventeen page response and Motion to Strike fortifies Plaintiff’s contention that Defendant is receiving unidentified legal assistance; 2) Defendant has gained an unfair tactical advantage of filing pleadings under the most liberal standards of review; and 3) that the inequities between the parties may only be remedied by the striking of all of Defendant’s pleadings or in the alternatives an evidentiary hearing be conducted or discovery be permitted in order to establish the unidentified legal assistant.

STANDARD OF REVIEW

Fed.R.Civ.P. 12(f) provides that upon motion by a party or upon the Court’s initiative at any time, the Court may order stricken from any pleading any insufficient, immaterial, impertinent, or scandalous matter. Motions to strike on the grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored, often being considered “time wasters,” and will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. Carlson Corp. / Southeast v. School Board of Seminole County, Florida, 778 F.Supp. 518, 519 (M.D.Fla.1991).

DISCUSSION

Plaintiff seeks to strike all of Defendant’s pleadings since Defendant began to proceed pro se in this litigation on May 11,1994, over two years ago. Plaintiff asserts that Defendant has not been honest with the Court because he professes to be a pro se litigant while actually utilizing a “ghost writer” to formulate legal theories and write pleadings. Plaintiff asserts that this deception prejudices Plaintiff and violates the candor which is owed- to the Court. Plaintiff is asking the Court for sweeping relief in this matter which would be of paramount prejudice to Defendant if granted.

To support Plaintiffs contention, Plaintiff has submitted to this Court a copy of a memo allegedly written by Defendant on December 23,1990, for comparison with a pleading filed by Defendant on June 26, 1995. Plaintiff argues that on this comparison the Court should readily see that the authors could not possibly be one and the same person. Defendant claims that this memo was dictated to and written by a secretary. Defendant furthers claims that he did not read the memo before he signed. No proof has been offered by either party to support their opposing claims.

This Court has read the pleadings filed by Defendant since May 11, 1994, and finds them to be of a consistent level of proficiency. While the Court agrees with Plaintiff [72]*72that the phraseology and grammar of the two documents are definitely different, a memo hastily written three years prior to this litigation and a formal pleading filed with the Court are too dissimilar to compare in this situation. It is also quite possible for a pro se litigant to become extremely adept at researching legal theories and producing quality pleadings when the litigation has been lengthy.

Plaintiff cites to Johnson v. Board of County Commissioners for County of Fremont, 868 F.Supp. 1226 (D.Co.1994), to support the allegation that “ghost writing” is grounds for the striking of pleadings and a violation of the candor owed to the Court in its administration of justice.

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168 F.R.D. 69, 36 Fed. R. Serv. 3d 1010, 1996 U.S. Dist. LEXIS 10790, 1996 WL 419859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/somerset-pharmaceuticals-inc-v-kimball-flmd-1996.