IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WENDY KERNECHEL

 

Plaintiff,

v.

UNITED STATES OF AMERICA and 

OFFICER JIMMY HIGHSMITH,

Defendants.

 Case No. 4:20-cv-00078-WS-MJF

MOTION TO STRIKE AMENDED COMPLAINT

On February 10, 2020, Plaintiff filed her original Complaint in this matter 

ECF 1. The original Complaint contained 96 numbered paragraphs, and set forth 

62 paragraphs worth of detailed factual allegations. See ECF 1, ¶¶ 8 – 69. The 

United States timely answered the Complaint on June 19, 2020.

1

 ECF 6. 

Defendant Jimmy Highsmith has not yet made an appearance in the case. The 

Plaintiff has moved to render service on Defendant Highsmith effective as of June 

24, 2020. ECF 8. 

On July 10, 2020, Plaintiff filed an Amended Complaint. ECF 7. The 

Amended Complaint reasserts, with only minor non-substantive changes, the same 

 1 The undersigned counsel represent only the Defendant, United States, in this 

matter.

Case 4:20-cv-00078-WS-MJF Document 10 Filed 07/24/20 Page 1 of 4
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allegations made in the original Complaint filed on February 10, 2020—which 

again, has already been answered. The primary changes made in the Amended 

Complaint are to add factual assertions about other inmates. See ECF 7, ¶¶ 50 –

64; 69 – 99. These additional allegations relate to an inmate who brought a 

previous case alleging abuse by Officer Highsmith. See ECF 7, ¶¶ 50 – 64. The 

Amended Complaint then also sets forth allegations related to two other new cases 

in which inmates have alleged abuse by Officer Highsmith.2

 See ECF 7, ¶¶ 69 –

99. These new allegations, however, are immaterial and impertinent to the claims 

set forth by the Plaintiff in this case. Accordingly, the United States moves to 

strike the Amended Complaint filed on July 10, 2020 pursuant to Federal Rule of 

Civil Procedure 12(f), thus rendering the original Complaint (ECF 1) and 

Defendant’s answer (ECF 6) the operative pleadings in the case.

Rule 12(f) states, “[t]he court may strike from a pleading an insufficient 

defense or any redundant, immaterial, impertinent, or scandalous matter. The court 

may act: (1) on its own; or (2) on motion made by a party either before responding 

to the pleading or, if a response is not allowed, within 21 days after being served 

with the pleading.” The United States recognizes that a motion to strike aimed at 

pleadings can be considered a drastic remedy that is disfavored by courts. See 

 2 J.C. v. United States of America et al., Case 4:20-cv-00283-AW-MAF (N.D. Fla, 

Filed May 29, 2020) and J.P. v. United States of America et al., Case 4:20-cv00317-AW-MAF (N.D. Fla, Filed June 16, 2020). 

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Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668, 670 (S.D. Fla. 2013). Here, 

however, the remedy is not so drastic. In fact, the Plaintiff’s original Complaint 

ECF 1) has already been answered. Thus, striking the Amended Complaint (ECF 

7) does not risk resulting in dismissal. Rather, the United States seeks to strike the 

Amended Complaint because the majority of the amendments set forth involve 

allegations by other inmates—two of whom have new active cases here in the 

Northern District of Florida—as opposed to Ms. Kernechel herself. While there 

may later be evidentiary questions about the admissibility of allegations by such 

other witnesses pursuant to Federal Rule of Evidence 415, the allegations are not 

pertinent to Ms. Kernechel’s pleading.

In this instance, that impertinence is not without consequence. As noted, 

two of the other cases about which Ms. Kernechel sets forth allegations are also 

pending here in the Northern District of Florida. Those cases have not been 

answered yet. The United States should not be required to answer such allegations 

here before they are answered in each of those plaintiff’s own respective cases.

WHEREFORE, Defendant, United States of America, moves to strike 

Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f)

thus rendering Plaintiff’s original complaint (ECF 1) and the answer thereto (ECF 

6) the operative pleadings.

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LOCAL RULE 7.1(B) CERTIFICATE

I HEREBY CERTIFY that the undersigned contacted Plaintiff’s counsel 

James Cook about this request. Plaintiff opposes this Motion. 

LOCAL RULE 7.1(F) CERTIFICATION

I HEREBY CERTIFY that this motion contains 678 words.

Respectfully submitted,

LAWRENCE KEEFE 

UNITED STATES ATTORNEY

/s/ Peter Fisher .

Peter G. Fisher

Assistant United States Attorney

Florida Bar No. 0413010

111 N. Adams Street

Tallahassee, FL 32301

850-942-8430

peter.fisher@usdoj.gov

Marie Moyle

Assistant United States Attorney

Florida Bar No. 1003498

111 N. Adams Street

Tallahassee, FL 32301

marie.moyle@usdoj.gov

850-942-8430

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