McCall, et al. v. Houston County, et al.

Filing 181

MEMORANDUM OPINION AND ORDER DENYING 82 MOTION to Strike the 80 Answer or to show cause, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 6/30/14. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

TRACEY MCCALL, as
)
administratrix of the
)
estate of Jonathan McCall, )
)
Plaintiff,
)
)
v.
)
)
HOUSTON COUNTY, et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
1:11cv559-MHT
(WO)

OPINION AND ORDER
Plaintiff Tracey McCall, on behalf of the estate of
decedent Jonathan McCall, names Houston County, Alabama
and various personnel of the Houston County Jail as
defendants

in

this

action.

She

alleges

that

the

defendants’ conduct caused the death of her brother in
violation of the Fourteenth Amendment and the State of
Alabama’s
§ 6-5-410.

wrongful

death

statute,

1975

Ala.

Code

She also alleges violations of Title II of

the Americans with Disabilities Act, 42 U.S.C. § 12131 et
seq., and § 504 of the Rehabilitation Act, 29 U.S.C.

§ 794.

Jurisdiction is proper under 28 U.S.C. §§ 1331

(federal

question),

1343

(civil

(supplemental jurisdiction).

rights),

and

1367

This cause is before the

court on McCall’s motion to strike affirmative defenses
from the defendants’ answer.

The motion will be denied.

As McCall argues, the answer was not timely filed.
The court resolved defendants’ motions to dismiss the
first amended complaint on March 29, 2013.

The answer

was not filed until August 28, 2013, some five months
later.

Pursuant to Fed. R. Civ. P. 12(a)(4)(A), the time

for filing the answer was 14 days after notice of the
court’s resolution of the motions to dismiss.
answer was, indeed, late.

Thus the

The defendants have, even now,

failed to seek leave to file late.
McCall does not ask the court to strike the answer in
its entirety because of this tardiness, but only the
affirmative defenses; in the alternative, she asks the
court to issue an order to show cause why each individual
affirmative defense should not be struck.

2

She argues

that she has been prejudiced because the answer includes
50 affirmative defenses and that, given the late date of
filing, she was unable to seek discovery as to all of
them.
The court is not persuaded that striking the defenses
is an appropriate sanction for the late-filed answer.
Generally, the remedy when a defendant does not answer is
a default.

But a default in this case would have been

inappropriate, because, despite the defendants’ failure
to file an answer timely, they were actively engaged in
discovery and litigation.

As an alternative, McCall

might have sought an order requiring the defendants to
file an answer after their time for doing so had expired.
The court gladly would have entertained such a request.
But McCall did not bring the defendants’ failure to
answer

to

the

attention

of

apparently, of the defendants.

either

this

court

or,

Rather, she waited to

object until November 13, 2013, another two and a half
months after the answer was filed.

3

The defendants argue

that her motion was itself untimely under Fed. R. Civ. P.
12(f),

which

requires

that

a

motion

to

strike

an

“insufficient defense” be filed within 21 days after
service of the answer.

McCall argues, without citation

to authority, that her motion is not brought pursuant to
Rule 12(f), but under some other power to strike portions
of late-filed answers.
Even if the court had such authority, a question the
court need not reach, it would not exercise it in this
case.

McCall’s delay in alerting the court and the

defendants that no answer had been filed and her further
delay in objecting to the late filing until nearly the
close of discovery are as unexplained and unjustified as
the defendants’ delay in filing their answer.

Whatever

the court’s view might have been at an earlier stage of
these proceedings, at this point it is clear that both
sides have been tardy and inattentive.
Finally, as part of her argument that she has been
prejudiced, McCall objects to the inclusion of some 50

4

affirmative defenses in the answer, in the manner of a
boiler plate “shotgun” pleading, including some that
appear totally irrelevant to this case.

In particular,

she points to two affirmative defenses that she argues
relate only to real-property claims, which are not at
issue in this case.
The court agrees that shotgun pleadings are wasteful
and often abusive of pleading process.

See Byrne v.

Nezhat, 261 F.3d 1075, 1130-1 (11th Cir. 2001).

But, at

the same time, “‘[a] motion to strike is a drastic
remedy[,]’ which is disfavored by the courts and ‘will
usually be denied unless the allegations have no possible
relation to the controversy and may cause prejudice to
one of the parties.’”
637,

638

Augustus

(M.D.
v.

Ala.

Board

of

Loucks v. Shorest, LLC, 282 F.R.D.
2012)
Public

(Albritton,
Instruction

J.)

(quoting

of

Escambia

County, Fla., 306 F.2d 862, 868 (5th Cir. 1962)).* McCall
* The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981)(en banc).
5

has argued that some of the affirmative defenses appear
irrelevant,

but

has

not

shown

to

this

court’s

satisfaction that they have no possible relation to the
controversy.
suffered

Nor is the court convinced that she has

prejudice;

for,

as

discussed

above,

if

the

affirmative defenses in the answer were as prejudicial as
she argues, the court would have expected her to object
to them promptly.
Both parties appear to have been derelict in allowing
this case to proceed so long without addressing and
resolving this matter.
entertain

other

possible

prejudice,

The court might be willing to

suggestions

for

including

how

to

perhaps

address
a

additional discovery period prior to trial.

any

limited
But the

court will not lay the entire responsibility at the
defendants’ feet as McCall requests.

***

6

Accordingly, it is ORDERED that the motion to strike
the answer or to show cause (Doc. No. 82) filed by
plaintiff Tracey McCall is denied.
DONE, this the 30th day of June, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE