Opinion
C.A. No. 06C-08-031 JTV.
Submitted: March 20, 2007.
Decided: July 10, 2007.
Upon Consideration of Defendants' Motion to Strike Plaintiff's Complaint. GRANTED in Part DENIED in Part.
Stephen A. Hampton, Esq., Grady Hampton, Dover, Delaware. Attorney for Plaintiff.
Ophelia Waters, Esq., Department of Justice, Wilmington, Delaware. Attorney for the State.
Bradly J. Goewert, Esq., and Lorenza A. Wolhar, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware. Attorneys for Defendant Correctional Medical Services, Inc.
Daniel L. McKenty, Esq., and Dana S. Monzo, Esq., McCullough McKenty, Wilmington, Delaware. Attorneys for Defendants First Correctional Medical-Delaware, LLC., Sitta Gombeh-Alie, M.D., and Tammy Kastre, M.D.
Colleen D. Shields, Esq., Elzufon, Austin, Reardon, Tarlov Mondell, Wilmington, Delaware. Attorney for Defendant Christina Damron, R.N.
ORDER
Upon consideration of the defendants' motion to strike plaintiff's complaint pursuant to Superior Court Civil Rule 8(a) and 12(f), the plaintiff's response, and the record of the case, it appears that:
1. In his complaint, the plaintiff, a former inmate held by the Department of Correction, alleges that the defendants violated his constitutional rights and committed medical negligence.
2. Defendants, First Correctional Medical Delaware LLC, Sitta Gombeh-Alie MD, and Tammy Kastre MD, contend that the complaint against them should be stricken for redundant, immaterial, impertinent and scandalous matters pled by plaintiff.
3. Defendants contend that paragraphs 15, 18-27, 29, 40-56, 117, 121, 125, and 148 should be stricken because they refer to alleged acts occurring prior to August 21, 2004, the date two years prior to the filing of the action. They contend that the two year statute of limitations bars the plaintiff's claims for both medical negligence and constitutional violations for any alleged acts occurring before that date.
4. Defendants also contend that paragraphs 26-32, 35, 36, 39, 118, 119, 121, 125, 149, and 151 constitute scandalous and defamatory material and should also be stricken from the complaint. Further, they contend that paragraphs 33, 34, and 97-108 contain redundant, immaterial, impertinent, vexatious, and nugatory statements and would also request that these be stricken from the complaint.
5. As I noted in my Order dated May 30, 2007 the appropriate pleading in which to raise the issue of statute of limitations is the defendants' answer, as an affirmative defense, not in a motion to dismiss the complaint.
McNair v. Taylor, et al., C.A. No. 06C-08-031, Vaughn, P.J. (March 30, 2007) (ORDER).
6. Further, in the prior Order of this Court I held that at this point in time there is insufficient information to make a decision as a matter of law regarding the statute of limitations defense. There is no record beyond the complaint and the papers required to be filed with it, defendants' motions to strike and to dismiss, and the plaintiff's responses to these motions. This remains true for this motion as well and, therefore, this issue can not be decided at this time.
7. Turning to the remaining paragraphs at issue in defendants' motion, the Court may order stricken, upon motion of a party, from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter pursuant to Super. Ct. Civ. R. 12(f). After reviewing the defendants' motion, the plaintiff's response and prior decisions of this Court, the following paragraphs are stricken from plaintiff's complaint: the first sentence of paragraph 27, paragraph 28, the last sentence of paragraph 31, and the last sentence of paragraph 36.
Fossett v. Taylor, Del. Super., C.A. No. 06C-07-042, Witham, R.J. (May 1, 2007) (ORDER).
Therefore, the defendants' motion is granted in part and denied in part.
IT IS SO ORDERED.