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Mears v. Jones

United States District Court, S.D. Mississippi, Southern Division

April 25, 2017

GEORGE MEARS PLAINTIFF
v.
LANCE FAGAN JONES, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Keith Starrett UNITED STATES DISTRICT JUDGE

         This is a property insurance case arising from the alleged failure to procure sufficient coverage. Plaintiff filed two Motions to Strike [37, 39, 44] certain defenses asserted by Defendants. For the reasons below, the Court denies the motions.

         I. Standard of Review

         A plaintiff seeking to challenge the legal sufficiency of a defense may move to strike it under Rule 12(f). C&C Inv. Props., LLC v. Trustmark Nat'l Bank, 838 F.3d 655, 660-61 (5th Cir. 2016). The rule provides: “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act . . . on motion made by a party either before responding to the pleading, or, if a response is not allowed, within 21 days after being served with the pleading.” Fed.R.Civ.P. 12(f). “A disputed question of fact cannot be decided on motion to strike.” Augustus v. Bd. of Public Instruction, 306 F.2d 862, 868 (5th Cir. 1962). Likewise, “when there is no showing of prejudicial harm to the moving party, courts are generally not willing to determine disputed and substantial questions of law upon a motion to strike. Under such circumstances, the court may properly, and we think should, defer action on the motion and leave the sufficiency of the allegations for a determination on the merits.” Id.

         II. Motion to Strike Constitutional Defenses [37]

         First, Plaintiff argues that the Court should strike Defendants' challenge to the constitutionality of Mississippi's punitive damages statute. For the following reasons, the motion should be denied.

         First, the motion was untimely. Rule 12(f) unambiguously provides that a motion to strike a defense from a pleading to which no response is permitted must be filed within twenty-one days of service of the pleading. Fed.R.Civ.P. 12(f). Defendants filed their Answer [7] on February 7, 2017, but Plaintiff did not file the Motion to Strike [37] until April 6, 2017 - almost two months later. This is sufficient reason to deny the motion. See Conn v. United States, 823 F.Supp.2d 441, 446 (S.D.Miss. 2011); United States ex rel. TVA v. An Easement & Right-Of-Way Over 3.28 Acres of Land, No. 1:15-CV-19-GHD-DAS, 2017 U.S. Dist. LEXIS 33623, at *6 (N.D. Miss. Mar. 6, 2017).

         Second, Plaintiff has not demonstrated that he would be prejudiced by leaving the sufficiency of the defense for a later determination, and without such a showing, the Court “should . . . defer action on the motion and leave the sufficiency of the allegations for a determination on the merits.” Augustus, 306 F.2d at 868; see also Conn, 823 F.Supp.2d at 446-47. Therefore, the Court can always address this issue later in the case, if it becomes necessary to do so.

         For these reasons, the Court denies Plaintiffs Motion to Strike [37] Defendants' constitutional defense to Plaintiff's claim for punitive damages, without prejudice to Plaintiff's right to assert the same argument later, if a punitive damages instruction is given and Defendants raise this defense.

         III. Motion to Strike Defenses [39, 44]

         Next, Plaintiff argues that the Court should strike Defendants' second, fourth, fifth, and sixth defenses on the grounds that they are immaterial, vague, and indefinite. For the same reasons provided above, the Court finds that the motion is untimely, and, therefore, it should be denied. See Fed. R. Civ. P. 12(f); Conn, 823 F.Supp.2d at 446; TVA, 2017 U.S. Dist. LEXIS 33623 at *6.

         IV. Conclusion

         For these reasons, the Court denies Plaintiff's Motions to Strike [37, 39, 44]. Additionally, this Court has repeatedly warned litigants against a using “shotgun approach to pleadings, ” in which one “heedlessly throws a little bit of everything into his [pleading] in the hopes that something will stick.” S. Leasing Partners, Ltd. v. McMullen, 801 F.2d 783, 788 (5th Cir. 1986).[1] In fact, the Court recently sanctioned an attorney for vexatiously multiplying proceedings with shotgun pleading and argumentation. See Payne v. Univ. of S. Miss., ...


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