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Polk v. Peraza

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

December 21, 2018

SUE POLK, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF JERRY R. POLK, THE HEIRS OF THE ESTATE OF JERRY R. POLK, AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES OF JERRY R. POLK PLAINTIFF
v.
MAURICO[1] PERAZA, MNE FREIGHT, LLC, AND JOHN DOES 1-5 DEFENDANTS

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION [10] TO STRIKE DEFENSES OF MAURICIO [1] PERAZA AND MNE FREIGHT, LLC

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Plaintiff's Motion [10] to Strike Defenses of Mauricio Peraza1 and MNE Freight, LLC. Because Plaintiff has not made a plausible showing of prejudice, the Court finds that the Motion should be denied.

         I. BACKGROUND

         On or about January 24, 2018, Sue Polk, individually and as Administratrix of the Estate of Jerry R. Polk, and on behalf of all wrongful death beneficiaries of Jerry R. Polk (collectively “Plaintiff” or “Polk”), filed suit in the Circuit Court of Pearl River County, Mississippi, against Maurico1 Peraza, MNE Freight, LLC, and John Does 1-5 (collectively “Defendants” or “Peraza”). State Ct. R. [1-1] at 1-4. Polk asserted claims for wrongful death and survival against Defendants arising out of a fatal motor vehicle crash that occurred on January 3, 2018. Id. at 4-6.

         On February 21, 2018, Defendants timely removed the case to this Court, invoking diversity jurisdiction under 28 U.S.C. § 1332 and §1441. See Notice of Removal [1]. Defendants filed their Answer [5] on February 26, 2018. Defs.' Answer [5]. Plaintiff has filed a Motion [10] to Strike Defenses of Mauricio Peraza and MNE Freight, LLC, and an accompanying Memorandum [11] in Support. Pl.'s Mot. to Strike [10]. Plaintiff seeks to strike Defendants' second, sixth, tenth, eleventh, twelfth, eighteenth, twenty-second, and twenty-third affirmative defenses, Pl.'s Mot. to Strike [10], which state as follows:

SECOND DEFENSE
Process and service of process are improper.
SIXTH DEFENSE
All claims for punitive damages are barred by federal and state laws, the United States Constitution, the Mississippi Constitution and the Mississippi Tort Claims Act.
TENTH DEENSE
Defendants specifically assert and invoke all defenses available to them as set forth in Miss. R. Civ. R. 12(b)(1) through 12(b)(7) for which a good faith legal and/or factual basis exists or may exist.
ELEVENTH DEFENSE
Defendants plead all applicable defenses under Miss. R. Civ. P. 8(c).
TWELFTH DEFENSE
Defendants aver that Plaintiffs'[2] claims are barred by the applicable statue of limitations, res judicata, collateral estoppel, laches, waiver, contributory negligence, accord and satisfaction, failure to ...

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