Cheatham v. Hays ( 2021 )

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LARRY D. CHEATHAM, Case No.: 19-10480 Plaintiff, v. Terrence G. Berg United States District Judge HEATHER L. HAYE, et al., Defendants. Curtis Ivy, Jr. ____________________________/ United States Magistrate Judge ORDER STRIKING PLAINTIFF’S RESPONSE TO DEFENDANT HAYE’S ANSWER TO COMPLAINT (ECF No. 66) On March 30, 2021, Plaintiff Larry Cheatham filed a response to Defendant Haye’s answer to the complaint. (ECF No. 66). Federal Rule of Civil Procedure 7(a) identifies the permissible pleadings and provides that a reply to an answer is permissible only “if the court orders one.” Fed. R. Civ. P. 7(a)(7). The Court did not order such and does not find a reply is necessary. Plaintiff cites Federal Rule of Civil Procedure 12(c) to support the permissibility of his response. (ECF No. 66, PageID.375). However, Rule 12(c) addresses when a party may move for Motion for Judgment on the Pleadings. Thus the Court believes Plaintiff intended to refer to Rule 12(a)(1)(C). Nonetheless, Rule 12(a)(1)(C) does not permit Plaintiff to file a response to Defendant Haye’s answer as, similar to Rule 7(a), it states a reply to an answer may be served after being a party is served with an order to reply. Therefore, Plaintiff’s response to Defendant Haye’s answer is an unauthorized pleading. See Crosky v. Ohio Dep’t of Rehab. & Corrs., 2010 WL 3061816, at *2 (S.D. Ohio Aug. 3, 2010) (striking unauthorized reply to answer, despite inclusion of language in the answer requesting dismissal of the complaint with prejudice, because such language is “little more than a restatement of the defense of failure to state a claim upon which relief can be granted, and that is one of the defenses allowed to be asserted in the responsive pleading”); see also Phifer v. Grand Rapids, 2009 WL 1771177, at *3 (W.D. Mich. June 23, 2009) (“Plaintiff’s status as a pro se litigant does not excuse her from following court rules.”). Accordingly, the Court STRIKES Plaintiff’s answer to the complaint. (ECF No. 66).. IT IS SO ORDERED. Review of this Order is governed by Federal Rule of Civil Procedure 72(a) and Local Rule 72.1(d). Date: April 16, 2021 s/Curtis Ivy, Jr. Curtis Ivy, Jr. United States Magistrate Judge CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on April 16, 2021, by electronic means and/or ordinary mail. s/Holly Monda Holly Monda in the absence of Kristen MacKay Case Manager (810) 341-7850