Filed: Mar. 21, 2014
Latest Update: Mar. 21, 2014
Summary: MINUTE ORDER KRISTEN L. MIX, Magistrate Judge. This matter is before the Court on non-party Cynthia Mares' ("Mares") Motion to Strike [#53] 1 (the "Summons Motion") and Cynthia Mares' Motion to Strike Affidavit of Service [#62] (the "Affidavit Motion" collectively with the Summons Motion, the "Motions"). On March 20, 2014, Plaintiffs filed a Response [#72] to the Affidavit Motion. Mares has not filed a reply in support of the Affidavit Motion and Plaintiffs have not filed a response to th
Summary: MINUTE ORDER KRISTEN L. MIX, Magistrate Judge. This matter is before the Court on non-party Cynthia Mares' ("Mares") Motion to Strike [#53] 1 (the "Summons Motion") and Cynthia Mares' Motion to Strike Affidavit of Service [#62] (the "Affidavit Motion" collectively with the Summons Motion, the "Motions"). On March 20, 2014, Plaintiffs filed a Response [#72] to the Affidavit Motion. Mares has not filed a reply in support of the Affidavit Motion and Plaintiffs have not filed a response to the..
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MINUTE ORDER
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on non-party Cynthia Mares' ("Mares") Motion to Strike [#53]1 (the "Summons Motion") and Cynthia Mares' Motion to Strike Affidavit of Service [#62] (the "Affidavit Motion" collectively with the Summons Motion, the "Motions"). On March 20, 2014, Plaintiffs filed a Response [#72] to the Affidavit Motion. Mares has not filed a reply in support of the Affidavit Motion and Plaintiffs have not filed a response to the Summons Motion.2 Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to this Court for disposition [##60, 63]. For the reasons set forth below, the Motion to Strike [#53] is DENIED and the Affidavit Motion [#62] is GRANTED.
On February 13, 2014, the Court granted Plaintiffs, who proceed in this matter pro se,3 leave to file their First Amended Complaint. Accordingly, the First Amended Complaint [#51] was filed that day. Plaintiffs name four Defendants in the First Amended Complaint: Deutsche Bank National Trust Company, as Trustee; Mortgage Electronic Registration Systems, Inc.; Hellerstein and Shore, PC; and David A. Shore. See First Am. Compl. [#51] at 1, 4-5. Plaintiffs do not name Cynthia Mares or her position, the Arapahoe County Public Trustee, as defendants in this action. However, Mares was served with a summons and a document titled "Plaintiffs[`] Second Amended Complaint." See generally Motion, Ex. A [#53-1]. In their Response, Plaintiffs contend that Mares is a named defendant in this lawsuit. Response [#72] at 2. That is incorrect. The operative complaint, the First Amended Complaint [#51], does not name either Mares or the Arapahoe County Public Trustee as a defendant.
In the Motions, Mares seeks relief pursuant to Fed. R. Civ. P. 12(f), which allows the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Pursuant to Fed. R. Civ. P. 7, "pleading" is defined to include a complaint but not a summons or an affidavit. However, the document titled "Plaintiffs[`] Second Amended Complaint" was not filed in this action even though it purports to be a complaint in this action. For that reason, the Court will not strike "Plaintiffs[`] Second Amended Complaint" that was served on Mares.
Regarding the summons served on Mares and the related Affidavit of Service [#57], Fed. R. Civ. P. 4(a)(1)(B) requires that a summons be directed to a defendant. Further, Fed. R. Civ. P. 12(1)(A) requires that a defendant serve an answer to a complaint. Mares is not a defendant in this action and, therefore, the summons she received which states that she "must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure" was improper. Further, the Affidavit of Service [#57] is deficient both because it states that service was effected on a nonparty and because it only states that a summons was served on her. See Aff. of Service [#57] at 1 (stating that Mares was served with a "SUMMONS IN A CIVIL ACTION" but not mentioning service of a complaint). Fed. R. Civ. P. 4(c)(1) states that a "summons must be served with a copy of the complaint." Accordingly, the Court will strike the Affidavit of Service [#57] filed by Plaintiffs that purports to evidence service of a summons on Mares. Therefore,
IT IS HEREBY ORDERED that the Motion to Strike [#53] is DENIED and the Affidavit Motion [#62] is GRANTED.
IT IS FURTHER ORDERED that the Affidavit of Service [#57] purporting to evidence service of a summons on Mares is STRICKEN.