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Gaeta v. Lotz Trucking Inc.

United States District Court, S.D. Indiana, Terre Haute Division

November 1, 2017

EZEKIEL E. GAETA, Plaintiff,
v.
LOTZ TRUCKING INC, RICK J SHOOPMAN, Defendants.

          ORDER ON MOTION TO STRIKE

          Mark J. Dinsmore United States Magistrate Judge

         This matter comes before the Court on a Motion to Strike, filed by Plaintiff, Ezekiel Gaeta. [Dkt. 19.] Plaintiff asserts Defendants' Answer [Dkt. 8] was not timely filed as required pursuant to Rule 81(c)(2) of the Federal Rules of Civil Procedure. Alternatively, Plaintiff asserts that Defendants' responses in paragraphs one (1), thirty (30), and forty-four (44) of Defendants' Answer are impermissible, qualified answers because they incorporated the phrase “to the extent” or “[b]y way of further answering.” Plaintiff further asserts Defendants' six “bare bones” affirmative defenses fail to provide any facts to support the allegations. Defendant concedes they untimely filed their answer. However, Defendants argue that their failure to file a timely answer is a result of excusable neglect. Defendants also argue that there is nothing improper about their responses or any risk that the responses will cause prejudice to Plaintiff. In addition, Defendants argue that Plaintiff is aware of the factual underpinning of Defendants' affirmative defenses. For the reasons set forth below, the Court DENIES Plaintiff's Motion.

         I. Background

         This is a tort action where Plaintiff alleges Defendants negligently hit Plaintiff while they were driving on a two-lane highway. On June 20, 2017, Plaintiff brought suit in Vermillion County (Indiana) Circuit Court. [Dkt. 1-2.] On July 27, 2017, Defendants filed their notice of removal to this Court pursuant to 28 U.S.C. §§ 1332(a)(1) and 1441(a). [Dkt. 1.] On August 21, 2017, Defendants filed their answer to Plaintiff's complaint asserting six affirmative defenses. [Dkt. 8.] On September 8, 2017, Plaintiff filed this Motion seeking to strike all or part of Defendants' Answer. [Dkt. 19.]

         II. Discussion

         Plaintiff argues Defendants' Answer should be stricken in its entirety because it was untimely filed. In the alternative, Plaintiff argues paragraphs one (1), thirty (30), and forty-four (44) of Defendants' Answer and paragraphs one (1), two (2), three (3), four (4), five (5), and six (6) of Defendants' affirmative defenses should be stricken because those paragraphs are impermissible qualified denials or insufficient defenses.

         A. Timeliness of Answer

         Plaintiff argues Defendants failed to file their answer within the time prescribed by Rule 81(c)(2) of the Federal Rules of Civil Procedure. [Dkt. 19.] Defendants agree that their Answer was untimely. [Dkt. 25. at 1.] However, Defendants argue that their failure to file a timely answer is a result of excusable neglect because Defendants sought and received an extension of time from the Vermillion Superior Court extending the time to file a responsive pleading up to and including August 21, 2017. [Id.] When Defendants removed the case to this Court on July 27, 2017, Defendants failed to re-calendar the due date of the responsive pleading from August 21, 2017 to August 3, 2017, the date the answer would be due under Federal Rule of Civil Procedure 81(c)(2). [Id.]

         Once a case is removed from state court to federal court, “the state court orders issued prior to removal are not conclusive but remain binding until they are set aside.” Payne v. Churchich, 161 F.3d 1030, 1037 (7th Cir. 1998) (citing 28 U.S.C. § 1450 (providing that all “orders and other proceedings had in such [state court] action prior to its removal shall remain in full force and effect until dissolved or modified by the district court”); Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 436 (1974) (“The ‘full force and effect' provided state court orders after removal of the case to federal court was not intended to be more than the force and effect the orders would have had in state court.”)). The law of the case doctrine provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case. Redfield v. Cont'l Cas. Corp., 818 F.2d 596, 605 (7th Cir. 1987). The law of the case doctrine applies when a state court action is removed to federal court. Id. In Granny Goose Foods, the Supreme Court held that by providing that the state court proceedings are effective in federal court, judicial economy is promoted and the parties' rights are protected. Granny Goose Foods, Inc., 415 U.S. at 435-36.

         Here, Defendants sought and received an extension of time from the Vermillion Superior Court extending the time to file a responsive pleading up to and including August 21, 2017. [Dkt. 1-2 at 11-13.] Upon removal, the Vermillion Superior Court's Order remains binding because this Court did not set aside the Order. Defendants filed their answer on time because they filed it on August 21, 2017. [Dkt. 8.] Accordingly, Defendants' answer was timely filed and the Court declines to strike Defendants' Answer on the basis of untimeliness. The Court will proceed to consider Plaintiff's challenges on the specific language used in portions of Defendants' Answer and the sufficiency of Defendants' six affirmative defenses.

         B. Qualified Answers

         Plaintiff argues Defendants' responses in paragraphs one (1), thirty (30), and forty-four (44) of Defendants' Answer are impermissible qualified answers because they incorporated the phrase “to the extent” or “[b]y way of further answering.” Defendants argue that there is nothing improper about their responses or any risk that the responses will cause prejudice to Plaintiff.

         A court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). In responding to a pleading, a party must “admit or deny the allegations asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1)(B). If a party must give a qualified answer, it must “admit the part that is true and deny the rest.” Fed. R. Civ. P. 8(b)(4). “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 Tech. ULC, No. 06-C-611-C, 2007 WL 5312633, at *1 (W.D. Wis. Mar. 12, 2017). Thus, motions 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). District courts have considerable discretion in ruling on motions to strike. See Delta Consulting Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009).

         In Valley Forge Insurance Company v. Hartford Iron & Metal, Inc., the Court held that Valley Forge's incorporation of the phrase “to the extent that further response may be required, the allegations in this paragraph are denied” (or a similar version) was “akin to an impermissible qualified denial” where the same phrase was used in fifty (50) paragraphs of Valley Forge's answer. Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-CV-00006-RLM-SLC, 2017 WL 1101096, at *2 (N.D. Ind. Mar. 21, 2017) (citing Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F.Supp.2d 897 (N.D. Ill. 2006) (striking defendant's answer where defendant began with the phrase “to the extent that” and then denied the remaining allegations, finding it was an impermissible “qualified answer”); Trs. Of Auto. Mechs. Local No. 71 Pension & Welfare Funds v. Union Bank of Cal., N.A., No. 08 C 7217, 2009 WL 4668580, at *1 (N.D. Ill.Dec. 2, 2009) (“[The phrase] ‘to the extent that' is a telltale tipoff that [the party] has failed to comply with the notice pleading requirements that the federal ...


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