McCall, et al. v. Houston County, et al.
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, )
HOUSTON COUNTY, et al.,
CIVIL ACTION NO.
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’ conduct caused the death of her brother in
violation of the Fourteenth Amendment and the State of
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.
Jurisdiction is proper under 28 U.S.C. §§ 1331
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.
was not filed until August 28, 2013, some five months
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.
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.
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
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
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
apparently, of the defendants.
Rather, she waited to
object until November 13, 2013, another two and a half
months after the answer was filed.
The defendants argue
that her motion was itself untimely under Fed. R. Civ. P.
“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
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.
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
affirmative defenses in the answer, in the manner of a
boiler plate “shotgun” pleading, including some that
appear totally irrelevant to this case.
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).
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.’”
Loucks v. Shorest, LLC, 282 F.R.D.
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).
has argued that some of the affirmative defenses appear
satisfaction that they have no possible relation to the
Nor is the court convinced that she has
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.
The court might be willing to
additional discovery period prior to trial.
court will not lay the entire responsibility at the
defendants’ feet as McCall requests.
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
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