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Harris v. Peterson

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 20, 2009

PHILLIP HARRIS, LINDA HARRIS, KYLE HEISTAND, AND BENJAMIN HARRIS, INDIVIDUALLY AND OPERATING AS STATEWIDE SERVICES LLC, A MISSOURI LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
W. SCOTT PETERSON, ET AL., DEFENDANT.

The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

Before the Court is Plaintiffs' Motion to Dismiss Defendant-Counterplaintiff's Petition for Attorney's Fees (Doc. 7). Defendant-Counterplaintiff has not filed a response to the motion and the date for filing a response has passed. Therefore, under LOCAL RULE 7.1(g), the Court construes Defendant- Counterplaintiff's failure to respond as an admission of the merits of the motion.*fn1 For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion to dismiss (Doc. 7).

Plaintiffs argue that Defendant-Counterplaintiff's prayer for an award of attorney's fees in Count I of his Counterclaim should be dismissed or stricken because Defendant-Counterplaintiffhas failed to allege any statutory provision entitling him to attorney's fees nor has he alleged an agreement between the two parties which would entitle him to an award of attorney's fees. The Court notes that while Plaintiffs have filed their motion as a motion to dismiss, the Court believes Plaintiffs' motion is more properly characterized as a motion to strike pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(f). Under Rule 12(f), upon motion or the Court's own initiative, "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike, however, are generally disfavored as they potentially serve only to delay. Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). But where motions to strike "remove unnecessary clutter from the case, they serve to expedite, not delay." Id. The determination whether to strike material under Rule 12(f) is within the discretion of the district court. Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 664-65 (7th Cir. 1992).

In Illinois, attorney's fees are only available when authorized by statute or agreement. Morris B. Chapman & Assoc., Ltd. v. Kitzman, 193 Ill.2d 560, 573, 739 N.E.2d 1263, 1271 (Ill. 2000) ("Illinois generally follows the 'America Rule': absent statutory authority or a contractual agreement between the parties, each party to litigation must bear its own attorney fees and costs, and may not recover those fees and costs from an adversary." (citations omitted)). Here, as Plaintiffs point out, and Defendant-Counterplaintiff fails to deny, Defendant- Counterplaintiff has not alleged any statutory provision which would entitle him to an award of attorney's fees. Further, Defendant-Counterplaintiff has not alleged that an agreement exists between the parties that would entitle him to attorney's fees. Therefore, the Court agrees with Plaintiff that Defendant-Counterplaintiff is not entitled to attorneys fees as to Count I of his Counterclaim but finds that it is more appropriate to strike the prayer for relief of attorney fees pursuant to Rule 12(f). Accordingly, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion to dismiss Defendant-Counterplaintiff's petition for attorney's fees. Defendant-Counterplaintiff's prayer for attorney's fees as to Count I of his Counterclaim is STRICKEN.

IT IS SO ORDERED.

David R. Herndon Chief Judge United States District Court


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