United States District Court, W.D. Arkansas, Harrison Division
OPINION AND ORDER
P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE
Currently before the Court and ripe for consideration are a second motion for summary judgment by Defendants Johnnie Copeland, Francie A. Kiddie, and Kipp Woodbury (“the represented Defendants”) (Doc. 100); Plaintiff Cheriese Kiddie’s pro se motion “to either declare trust invalid or responsible for decedent’s personal debts or else to stay proceeding while estate is either probated or administered” (Doc. 104); Plaintiff’s pro se motion to strike (Doc. 109); Plaintiff’s motion to amend complaint (Doc. 121); Plaintiff’s motion for issuance of subpoenas and for continuance (Doc. 122); Plaintiff’s third motion to compel (Doc. 123); and Plaintiff’s application to adjourn trial date (Doc. 124). The Court will address each motion in turn.
I. The represented Defendants’ second motion for summary judgment (Doc. 100)
The represented Defendants filed their second motion for summary judgment on November 3, 2015. Counsel for those Defendants, Kerry Chism, failed to serve the motion on either Plaintiff or pro se Defendant Meridee Kaiser, despite the Court’s prior admonition and clear directives to ensure appropriate service of all documents to Plaintiff. (Doc. 65, p. 3 (“Mr. Chism is cautioned . . . to ensure that all future filings are properly and timely served.”)); (Doc. 72, pp. 1-2 (“The Court will therefore order and direct that all Defendants serve Ms. Kiddie with any and all documents filed in this case by sending Ms. Kiddie a pdf file of the document via email to email@example.com.”)). The Court could have denied the motion on this basis alone, but instead allowed Plaintiff time to respond to the motion after having been apprised of its existence. (Doc. 114). The represented Defendants did not file a reply. Having reviewed the motion, supporting documents, and Plaintiff’s response and supporting documents, the Court finds that the motion suffers from fatal deficiencies requiring its denial.
First, the motion is, at most, a motion for partial summary judgment, as it contains argument only as to Plaintiff’s claims that the November 23, 2010 Trust document at issue in this case and/or the December amendment thereto are invalid for any number of reasons. The represented Defendants’ argument that summary judgment is appropriate on this issue rests on supporting affidavits of lay persons who state no opinion that would be determinative of whether George Woodbury was competent to sign the documents at issue or was acting under duress at the time. Furthermore, many of the affidavits are signed by interested parties whose credibility could certainly be questioned and whose statements are in direct conflict with those of Plaintiff. In any event, Defendants have not established the absence of a genuine issue of material fact as to the validity of either the November 2010 Trust or its December amendments, and summary judgment as to the validity of those documents is therefore improper at this time.
Second, because the represented Defendants have still failed to fully comply with Plaintiff’s discovery requests, discovery in this matter is ongoing. The represented Defendants’ motion is therefore premature and is alternatively denied pursuant to Federal Rule of Civil Procedure 56(d).
II. Plaintiff Cheriese Kiddie’s pro se motion “to either declare trust invalid or responsible for decedent’s personal debts or else to stay proceeding while estate is either probated or administered” (Doc. 104)
In this motion, Plaintiff seeks to have the Court “either: A: Declare that the George B. Woodbury Trust of November 23, 2010, either is invalid, or is liable for the personal debt of George B. Woodbury to Plaintiff; or B. Stay this proceeding pending the appointment of an Administrator or Executor of the Estate of George B. Woodbury.” (Doc. 104, p. 1). In essence, Plaintiff seeks a judgment as a matter of law of certain claims that she has propounded (the invalidity of the November 23, 2010, trust) and/or findings that would require the Court to make legal conclusions on issues that have not been adequately briefed at this point (whether the existing trust, if valid, should be liable to Plaintiff for alleged personal debts owed to her by George B. Woodbury; and, if not, whether Mr. Woodbury’s estate should be probated). Because Ms. Kiddie’s motion is akin to a motion for partial summary judgment, and because the Court finds that there are issues of material fact remaining to be adjudicated as to the claims raised in Ms. Kiddie’s motion, the Court finds that the motion should be DENIED. The denial, however, will be without prejudice to Ms. Kiddie’s ability to refile a motion for summary judgment on any or all of her claims.
III. Plaintiff’s pro se motion to strike (Doc. 109)
Plaintiff moves the Court to strike the represented Defendants’ response to her motion to declare trust invalid, arguing that she was never served with the response. The Court has already noted Mr. Chism’s failure to properly serve Plaintiff with documents in this case, and Mr. Chism will be ordered to show cause as to why he should not be sanctioned for his failures to serve Plaintiff as directed and required. Furthermore, the represented Defendants’ response to Plaintiff’s motion was entirely unhelpful, as it was filled with conclusory denials with no accompanying explanation, analysis, or factual support. However, striking the filing is not an appropriate remedy. Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The represented Defendants’ response to Plaintiff’s motion is not a pleading, and striking the filing is therefore not procedurally appropriate. Instead, the Court simply did not consider the response to the extent that the information or statements contained therein were unsupported. Mr. Chism is directed to ensure that future responses to motions must be supported, legally and factually, in order to be considered by the Court. Plaintiff’s motion to strike, however, is DENIED.
In the alternative, Plaintiff requested an opportunity to file a reply to the represented Defendants’ response. The Court notes that Plaintiff subsequently filed a reply (Doc. 111) which was considered by the Court.
IV. Plaintiff’s motion to amend complaint (Doc. 121)
Plaintiff filed this motion on March 8, 2016. No response has been filed by Defendants. Federal Rule of Civil Procedure 15(a)(2) allows for a party to seek leave of Court to amend a complaint, and that “[t]he court should freely give leave when justice so requires.” Having considered the circumstances of this case and the pending ...