Nationwide Mutual Insurance Company v. Nall's Newton Tire

Filing 24

ORDER GRANTING Nationwide Mutual Insurance Company's 19 Motion to Amend Counterclaim as set out. Signed by Judge Callie V. S. Granade on 8/7/2014. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NATIONWIDE MUTUAL
INSURANCE COMPANY,

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) CIVIL ACTION NO. 14-110-CG-M
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Plaintiff,
vs.
NALL’S NEWTON TIRE a/k/a
NALL’S NEWTON TIRE
SERVICE, INC.,
Defendant.

ORDER
This matter is before the court on the motion of Nationwide Mutual
Insurance Company (“Nationwide”) to amend answer to counterclaim (Doc. 19),
opposition thereto filed by Nall’s Newton Tire (“NNT”) (Doc. 21), and Nationwide’s
reply (Doc. 23). For the reasons stated below, the court finds that Nationwide’s
motion to amend should be granted.
BACKGROUND
This case arises from insurance claims made for damage resulting from a fire
that occurred at NNT’s premises on December 18, 2012. Nationwide asserts in its
complaint that no coverage exists for NNT’s claims under their policy of insurance.
(Doc. 1). On April 3, 2014, NNT filed its answer to the complaint and asserted
counterclaims for breach of contract and bad faith refusal to pay. (Doc. 9).
Nationwide filed its answer to the counterclaims on April 28, 2014. (Doc. 11). On
May 21, 2014, a Rule 16(b) Scheduling Order was entered setting this action for

jury trial in June 2015 and requiring that all discovery be completed by December
31, 2014. (Doc. 17). The Scheduling Order also stated that “[a]ny motion for leave
to amend the pleadings or to join other parties must be filed on or before July 1,
2014.” (Doc. 17, p. 2).
On June 16, 2014, Nationwide moved to amend its answer to the
Counterclaims so that it could include an affirmative defense of spoliation with
regard to a compressor that it argues was not preserved and is no longer available
for inspection but has been alleged to be the cause of the fire. (Doc. 19). Its
proposed amended answer asserts as its fortieth affirmative defense that NNT “has
failed to preserve critical evidence in this matter and spoliation bars its claims.”
(Doc. 19-1, p. 13). NNT objects to the amendments asserting that its counsel
contacted Nationwide’s counsel on July 3, 2013 regarding demolishing the building
and that Nationwide’s counsel affirmatively agreed that the building could be
demolished without requesting that any part of the building or its contents be
retained. (Doc. 21, ¶ 1). According to NNT, Nationwide had numerous
opportunities to view the burned building and contents and had maintained that
the compressor was not the cause of the fire. (Doc. 21, ¶¶ 2, 3). Moreover, NNT
contends that the compressor has not been destroyed and is available for view and
inspection. (Doc. 21, ¶ 5).
DISCUSSION
Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings
“shall be freely given when justice so requires.” See FED. R. CIV. P. 15(a). The

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Eleventh Circuit recognized that Rule 15(a) “severely restricts” a district court’s
discretion to deny leave to amend. Sibley v. Lando, 437 F.3d 1067, 1073 (11th Cir.
2005). “Unless a substantial reason exists to deny leave to amend, the discretion of
the District Court is not broad enough to permit denial.” Florida Evergreen Foliage
v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006) (citation
omitted). That said, leave to amend can be properly denied under circumstances of
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape
Service, Inc., 556 F.3d 1232, 1241 (11th Cir. 2009) (citation omitted).
Federal Rule of Civil Procedure 12(f) allows a court “to strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” See FED. R. CIV. P. 12(f). A “motion to strike an affirmative defense is
proper when the defense is insufficient as a matter of law.” E.E.O.C. v. Joe Ryan
Enterprises, Inc., 281 F.R.D. 660, 662 (M.D. Ala. 2012) (citing Equal Emp't
Opportunity Comm'n v. First Nat. Bank of Jackson, 614 F.2d 1004, 1008 (5th Cir.
1980) (striking an affirmative defense pursuant to Rule 12(f) when the defense was
deemed insufficient as a matter of law)).1 “Despite the fact that judges enjoy

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down
prior to September 30, 1981.
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discretion to strike pleadings pursuant to Rule 12(f), striking a party’s pleading is
an extreme and disfavored measure.” Id. (internal quotations and citations omitted).
In the instant case, Nationwide timely filed its motion to amend its answer
before expiration of the 16(b) deadline for amendments. NNT has objected to the
amendment asserting that the facts do not support Nationwide’s proposed
affirmative defense. However, NNT has not shown that the affirmative defense is
insufficient as a matter of law. There has been no allegation that the addition of
the affirmative defense will somehow cause undue delay or prejudice. NNT’s
objection appears to assert that the amendment is futile and brought in bad faith
because the facts do not support it. However, the court is not in a position at this
time to weigh the evidence and determine whether the defense is factually
supported. No real evidence is even before the court, only the arguments of counsel.
Accordingly, the court finds that substantial reason for denial of Nationwide’s
motion has not been shown and, therefore, that Nationwide’s motion to amend must
be granted.
CONCLUSION
For the reasons stated above, the motion of Nationwide Mutual Insurance
Company to amend answer to counterclaim (Doc. 19), is hereby GRANTED.
DONE and ORDERED this 7th day of August, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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