United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is a motion to strike (DE 631) filed by Defendants
and Counter-Claimants Hartford Iron & Metal, Inc., and
Alan B. Goldberg, doing business as Hartford Iron & M
(together, “Hartford Iron”) pursuant to Rule
12(f) of the Federal Rules of Civil Procedure, seeking to
strike the answer (DE 625) filed by
Plaintiff/Counter-Defendant Valley Forge Insurance Company to
Hartford Iron's Second Amended Counterclaims (DE 508).
Hartford Iron contends that Valley Forge's answer should
be stricken because: (1) it is untimely and has resulted in
prejudice to Hartford Iron; and (2) more than 50 of the
responses in the answer purportedly do not comply with
Federal Rule of Civil Procedure 8(b), in that they do not
include, or are not limited to, an admission, a denial, or an
averment that the party lacks knowledge or information
sufficient to form a belief as to the truth of the averment.
The motion is now ripe for ruling. (DE 639; 649).
following reasons, Hartford Iron's motion to strike will
be GRANTED IN PART and DENIED IN PART.
Applicable Legal Standard
Rule of Civil Procedure 8(b) states that in responding to a
pleading, a party must “admit or deny the allegations
asserted against it by an opposing party.” “A
party that lacks knowledge or information sufficient to form
a belief about the truth of an allegation must so state, and
the statement has the effect of a denial.” Fed.R.Civ.P.
12(f) states that the Court “may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“Generally speaking, motions to strike portions of
pleadings are disfavored as they consume scarce judicial
resources and may be used for dilatory purposes.”
Silicon Graphics, Inc. v. ATI Techs. ULC, No.
06-C-611-C, 2007 WL 5312633, at *1 (W.D. Wis. Mar. 12, 2007)
(citing Custom Vehicles, Inc. v. Forest River, Inc.,
464 F.3d 725, 727 (7th Cir. 2006); Heller Fin., Inc. v.
Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.
1989)). However, “a motion that seeks to remove
unnecessary clutter serves not to delay, but rather to
expedite.” Abayneh v. Zuelch, No. 2:10-CV-415
RLM-RCB, 2011 WL 572407, at *1 (N.D. Ind. 2011) (citing
Heller Fin., Inc., 883 F.2d at 1294).
to strike pleadings “will generally be denied unless
the portion of the pleading at issue is prejudicial.”
U.S. Liab. Ins. Co. v. Bryant, No. 3:10-cv-129, 2011
WL 221662, at *1 (S.D. Ill. Jan. 21, 2011) (citing Heller
Fin., Inc., 883 F.2d at 1294; Tektel, Inc. v.
Maier, 813 F.Supp. 1331, 1334 (N.D. Ill. 1992)). The
decision whether to strike material under Rule 12(f) is
within the discretion of the district court. Delta
Consulting Grp., Inc. v. R. Randle Constr., Inc., 554
F.3d 1133, 1141 (7th Cir. 2009); Talbot v. Robert
Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir.
Timeliness and Prejudice
Iron first argues that Valley Forge's answer, which was
filed on January 22, 2017, should be stricken for the reason
that it is untimely. Hartford Iron contends that pursuant to
Rule 12(a)(4), Valley Forge's answer was due 14 days
after the Court's Order dated January 4, 2017, that
dismissed a portion of Hartford Iron's counterclaims.
Hartford Iron asserts that Valley Forge's delay
prejudiced Hartford Iron in that it could not use the answer
in its January 23rd and 24th depositions of Brian Frankl and
response, Valley Forge argues that Rule 12(a)(1)(B), rather
than Rule 12(a)(4), applies, and thus, that it had 21 days,
rather than 14 days, after the Court's January 4th Order
within which to file its answer. Valley Forge urges that even
if it was mistaken in applying Rule 12(a)(1)(B) rather that
Rule 12(a)(4), its reliance on the time frame set forth in
Rule 12(a)(1)(B) was in good faith and constitutes
“excusable neglect” under Rule 6(b)(1)(B).
Additionally, Valley Forge rejects Hartford Iron's claim
of prejudice, emphasizing that Hartford Iron had originally
noticed Frankl's and Rodriguez's depositions for
January 19th and 20th, respectively, and thus, that Hartford
Iron never intended to use Valley Forge's answer during
these depositions. Valley Forge emphasizes that, in any
event, Hartford Iron received the answer on the evening of
January 22nd-still before the depositions commenced.
Court agrees that even if Rule 12(a)(1)(B) applies, Valley
Forge has shown excusable neglect for its delay. With respect
to “excusable, ” the Seventh Circuit Court of
Appeals has stated:
the determination is at bottom an equitable one, taking
account of all relevant circumstances surrounding the
party's omission. These include . . . the danger of
prejudice to the [non-movant], the length of the delay and
its potential impact on judicial proceedings, the reason for
the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
Moje v. Fed. Hockey League, LLC, 792 F.3d 756, 759
(7th Cir. 2015) (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs. L.P., 507 U.S. 380, 395 (1993)). Here,
Hartford Iron has not shown that it was prejudiced by Valley
Forge's delay, and the delay was minimal-just four days.
Furthermore, once Hartford Iron alerted Valley Forge to
Hartford Iron's calculation of the deadline, Valley Forge
filed its answer the next day, suggesting that counsel acted
in good faith. (DE 639 at 4-5); see, e.g., Saul
v. Prince Mfg. Corp., No. 1:12-CV-270, 2013 WL 228716,
at *2 (N.D. Ind. Jan. 22, 2013) (considering when finding
excusable neglect, that as soon as counsel was alerted to the
missed deadline, it filed a response the next day); Ruiz
v. Carmeuse Lime, Inc., No. 2:10-CV-21-PRC, 2011 WL
3290376, at *1 (N.D. Ind. July 14, 2011) (same). Moreover,
Valley Forge's proffered reason for its delay falls
within a type of excusable neglect described as “good
faith misinterpretation ...