UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NEIL SPIZIZEN, Individually,

NEIL SPIZIZEN REVOCABLE LIVING

TRUST, U/A/D 7/3/86, and

CRESCENDO HOMES, INC.,

Plaintiffs,

Case No. 09-11713

v. Hon. Gerald E. Rosen

NATIONAL CITY CORPORATION, et al.,

Defendants.

_________________________________/

OPINION AND ORDER REGARDING DEFENDANTS’

MOTION TO STRIKE PLAINTIFFS’ FIRST AMENDED COMPLAINT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on February 1, 2010 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

I. INTRODUCTION

This matter is presently before the Court on Defendants PNC Financial Services

Group, Inc., National City Corporation and National City Bank’s Motion to Strike

Plaintiffs’ First Amended Complaint. Plaintiffs have responded to the motion. Having

reviewed and considered the parties' briefs and supporting evidence, the Court has

determined that oral argument is not necessary. Therefore, pursuant to Eastern District of

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Michigan Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Opinion

and Order sets forth the Court's ruling.

II. PROCEDURAL BACKGROUND

Plaintiffs Neil Spizizen, Neil Spizizen Revocable Living Trust, uad 7/3/86, and

Crescendo Homes, Incorporated, first initiated this action in Oakland County Circuit

Court on April 3, 2009. Defendants removed the case to this Court citing diversity of

citizenship. They subsequently filed a Motion to Dismiss Count I (conversion) and Count

III (breach of the implied covenant of good faith and fair dealing under common law and

under Mich. Comp. Laws § 440.1203) from the Complaint. On November 10, 2009, this

Court issued an Opinion and Order granting Defendants’ motion, dismissing Counts I and

III, and dismissing the Individual Defendants, Stanley P. Szasna, Hope Landgraff,

Richard Landgraff and Norman Lining, from the case. In that Order, the Court suggested

that “Plaintiffs may seek leave to amend their existing breach of contract claim in Count

II (breach of contract against National City) to ‘incorporate allegations of [National

City’s] lack of good faith performance of its contractual obligations.” Dkt. #11, at p. 12-

13. 

On December 30, 2009, Plaintiffs filed a First Amended Complaint without

seeking leave of the Court. In accordance with the Court’s suggestion, Plaintiffs’ added

allegations to Count II, incorporating lack of good faith performance in the breach of

contract claims. However, in all other respects, the Amended Complaint essentially

repleads the claims set out in the original complaint. Plaintiffs leave Counts I and III

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wholly unamended, but insert a “legend” to “make[] clear that Defendants need not

answer such counts inasmuch as they were dismissed pursuant to this Court’s Opinion

and Order, just as would have been the case had Plaintiffs not elected to file the First

Amended Complaint.” (Pls. Resp. 2); see also (Am. Compl. ¶¶ 44-55, 72-81). The

Amended Complaint also leaves references in the general allegations to the Individual

Defendants. (Am. Compl. ¶¶ 5-8, 36.)

By motion filed on January 13, 2010, Defendants request that Plaintiffs’ First

Amended Complaint be stricken in its entirety because it contains immaterial information

and allegations: specifically, all references to dismissed Counts I and III, and any mention

of the Individual Defendants. In their response, Plaintiffs argue that the Amended

Complaint was filed to conform to the recommendations of this Court with respect to the

remaining breach of contract claims (Count II). In addition, Plaintiffs argue that they

have left other portions of the complaint unamended so as to preserve their appellate

rights with respect to dismissed Counts I and III. 

III. ANALYSIS

Under Rule 12(f) of the Federal Rules of Civil Procedure, “[t]he court may strike

from a pleading an insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter.” Fed. R. Civ. P. 12(f). Although the action of striking a pleading

should be used sparingly by the courts, motions to strike are generally granted where the

allegations are clearly immaterial to the controversy or would prejudice the movant. 

Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). 

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Ultimately, the decision to strike a pleading is firmly within the discretion of the court. 

Ameriwood Industries Intern. Corp. v. Arthur Andersen & Co., 961 F. Supp. 1078, 1083

(W.D. Mich. 1997) (citing cases).

As a general rule, an amended pleading supersedes the original, rendering the latter

a legal nullity. Drake v. City of Detroit, 266 Fed. Appx. 444, 448 (6th Cir. 2008); see

also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &

Procedure § 1476 (2nd ed.) (“A pleading that has been amended under Rule 15(a)

supersedes the pleading it modifies and remains in effect throughout the action unless it

subsequently is modified.”). However, “[m]ost circuits refuse to require a plaintiff to

replead dismissed claims in order to preserve the right to appeal the dismissal.” Young v.

City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (citing Davis v. TXO Prod.

Corp., 929 F.2d 1515, 1518 (10th Cir.1991) (“We believe that a rule requiring plaintiffs

who file amended complaints to replead claims previously dismissed on their merits in

order to preserve those claims merely sets a trap for unsuspecting plaintiffs with no

concomitant benefit to the opposing party. . . . The district court's dismissal of the claim

made clear that any attempt by appellant to re-allege that claim would be futile.”

(footnotes and internal citations omitted)); see also Wright & Miller, § 1476 (“A rule that

a party waives all objections to the court's dismissal if he elects to amend is too

mechanical. . . . Without more, the action of the amending party should not result in

completely denying the right to appeal the court's ruling.”). 

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While it appears that the Sixth Circuit has not yet expressly ruled on this issue, the

Court finds that in this case it is unnecessarily redundant for Plaintiffs to replead claims

already dismissed by the Court. Logically, claims are only waived when they are dropped

by the plaintiff in an amended complaint. The waiver rule is inapplicable where the

claims were dismissed by the court. Accordingly, here, Plaintiffs’ dismissed

claims—Counts I and III, and allegations related to the Individual Defendants—shall be

stricken, without prejudice to Plaintiffs appellate rights. 

The parties further dispute the significance of Plaintiffs' failure to seek leave from

the Court to file an amended complaint. Under Fed. R. Civ. P. 15(a)(1), a plaintiff is

entitled to amend his complaint before being served with a responsive pleading. In all

other cases, he may only amend his pleading with the written consent of the defendant or

the court's leave. Fed. R. Civ. P. 15(a)(2). In this case, Defendants did not serve

Plaintiffs with an answer on the remaining portions of the original complaint after this

Court's November 10, 2009 ruling on the Motion to Dismiss. Thus, Plaintiffs arguably

were entitled to amend their complaint once as a matter of course. However, this Court

indicated in its November 10, 2009 order that Plaintiffs should seek leave of the Court to

amend Count II. Ultimately, the Court need not resolve this issue. With or without leave

to amend, the Court finds Defendants have not shown that the amendment to Count II was

brought in bad faith or for dilatory purposes, that it would result in undue delay or

prejudice to Defendants, or that it would be futile. In the interest of judicial efficiency,

the remaining portions of the First Amended Complaint shall not be stricken.

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IV. CONCLUSION

Having reviewed and considered Defendants’ Motion to Strike the First Amended

Complaint and the Court’s entire record of this matter, the Court will grant the requested

relief, but only with respect to the paragraphs that make specific reference to either

dismissed claims or the Individual Defendants, who are no longer parties to this action.

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’ January 13,

2010 Motion to Strike Plaintiffs’ First Amended Complaint (Dkt. #15) is GRANTED IN

PART. 

IT IS FURTHER ORDERED that all references to the dismissed counts and to the

Individual Defendants—specifically, Paragraphs 5 through 8, 36, 44 through 55, and 72

through 81 in the December 30, 2009 First Amended Complaint filed by Plaintiffs Neil

Spizizen, Neil Spizizen Revocable Living Trust, uad 7/3/86, and Crescendo Homes,

Incorporated—are STRICKEN. 

IT IS SO ORDERED.

s/ Gerald E. Rosen 

Chief Judge, United States District Court

Dated: February 1, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

February 1, 2010, by electronic and/or ordinary mail.

s/Ruth A. Brissaud 

Case Manager

(313) 234-5137

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