Allie Overstreet files Motion to Strike Bill Windsor’s Verified Complaint.
RESPONSE TO MOTION TO STRIKE PLEADINGS
BY DEFENDANT ALLIE L. OVERSTREET
Comes Now, William M. Windsor (“Windsor” or “Plaintiff”) and files this RESPONSE TO MOTION TO STRIKE PLEADNGS BY DEFENDANT ALLIE LORAINE YAGER OVERSTREET. PLAINTIFF shows the Court as follows:
- 1. On May 30, an attorney purportedly acting for DEFENDANT ALLIE LORAINE YAGER OVERSTREET (“DEFENDANT”) filed a MOTION TO STRIKE PLEADINGS.
- 2. There is no entry of appearance on file from this attorney, and the PLAINTIFF has not received any such notice of appearance.
- 3. Local Rule 21.2 requires that attorneys file an Entry of Appearance. No such Entry of Appearance has been served on the PLAINTIFF, and no such Entry of Appearance is shown on the Court Docket.
- 4. Pursuant to Local Rule 21.2, PLAINTIFF asks that this MOTION be denied. The attorney has no standing in this matter.
- 5. The MOTION makes an unsubstantiated assertion that the PLAINTIFF did not provide a “short plain statement showing that the pleader is entitled to relief.”
- 6. The Statement of Facts in the PLEADINGS is only 26 pages. The PLEADINGS are verified, so they also serve as a sworn affidavit under penalty of perjury, signed before a notary. While “evidence in support of allegations need not be pleaded,” (Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 485 (1924) (en banc)), these PLEADINGS served a dual purpose as a sworn affidavit. As the PLEADINGS invoke substantive principles of law which if proved may entitle PLAINTIFF to relief, dismissal is improper. (Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625 (Mo. App. 1975).)
- The PLEADINGS simply recite facts. The only reason they are as long as they are is due to the massive defamation and other wrongdoing by the DEFENDANT. The case law on Rule 55.05 seems to address instances where insufficient information is provided. This is not the situation here. The purpose of this fact-pleading requirement “is to present, define[,] and isolate the controverted issues so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of a cause on the merits.” Sivigliano v. Harrah’s N. Kan. City Corp., 188 S.W.3d 46, 48 (Mo. App. 2006) (internal quotation marks and citation omitted). “Although the petition does not have to plead evidentiary or operative facts showing an entitlement to the relief sought, it must plead ultimate facts demonstrating such an entitlement and cannot rely on mere conclusions.” Brock, 143 S.W.3d at 56. The PLEADINGS meet the requirements.
- ATTORNEY O’CONNOR falsely and maliciously claims the PLEADINGS are “redundant and a verbose diatribe of immaterial information.” There is nothing redundant. The PLEADINGS are not verbose – simple statements of fact. There is nothing whatsoever immaterial. PLAINTIFF has sworn to this under penalty of perjury in the AFFIDAVIT OF WILLIAM M. WINDSOR DATED JUNE 28, 2013, attached hereto as Exhibit A and incorporated herein.
- The function of pleadings is to “present, define and isolate controverted issues so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of the cause on the merits.” Pillow v. General American Life Ins. Co., 564 S.W.2d 276, 280[2,3] (Mo. App. 1978). This has been done to the best or the pro se PLAINTIFF’S ability.
- Rule 55.05 provides that a plaintiff’s petition must “contain [ ] a short and plain statement of the facts showing that the pleader is entitled to relief[.]” The purpose of this fact-pleading requirement “is to present, define[,] and isolate the controverted issues so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of a cause on the merits.” (Sivigliano v. Harrah’s N. Kan. City Corp., 188 S.W.3d 46, 48 (Mo. App. 2006) (internal quotation marks and citation omitted). The failure to plead facts entitling the pleader to the relief requested, as required by Rule 55.05, deprives the trial court of jurisdiction to grant it. Id. (Ford Motor Credit Co. v. Updegraff, 218 S.W.3d 617 (Mo.App. W.D. 04/10/2007).) The PLAINTIFF has plead facts that establish that he is entitled to relief.
- The PLAINTIFF has researched Rule 55.05 in relation to the terms redundant, verbose, and immaterial, and he can find no appellate decisions in Missouri to indicate that this is a valid motion. The DEFENDANT failed to cite ANY case law to support this MOTION.
- RSMo. § 509.320 provides that “A party may move to strike any redundant, immaterial, impertinent, or scandalous matter from any pleading.” The DEFENDANT has failed to identify anything that is redundant or immaterial.
- RSMo. § 509.280 provides that “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” There are no particulars in this MOTION, and it must be denied.
- DEFENDANT failed to file a motion to make PLAINTIFF’S PLEADINGS more definite and certain as required by Missouri law. (Ward v. Stubbs, 374 S.W.2d 40 (01/13/1964).) (Burke v. City of St. Louis, 349 S.W.2d 930 (10/09/61).)
- The PLAINTIFF has been diligently attempting to obtain needed discovery, but he has been denied those subpoenas by the Clerk of the Court. A motion to compel the Clerk to provide the subpoenas is pending with the Court as well as a motion for extension of time to respond to this MOTION TO STRIKE PLEADINGS. The PLAINTIFF is filing this RESPONSE as a hearing on the motion for extension cannot be heard until July 16, 2013.
- WHEREFORE, PLAINTIFF prays that this Court enter an order denying the MOTION TO STRIKE PLEADINGS and dismiss this matter; and grant such other relief as the Court deems appropriate.
Submitted this 28th day of June, 2013,
William M. Windsor
514 America’s Way #4841
Box Elder, SD 57719-7600