Zelhofer v. Metropolitan Life Insurance Company et al

Filing 96

ORDER signed by Magistrate Judge Allison Claire on 6/1/18, ORDERING that Plaintiff's 83 Motion to Strike is DENIED. Plaintiff's 84 Motion for Default Judgment is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER ZELHOFER,

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No. 2:16-cv-0773 TLN AC PS

Plaintiff,
v.

ORDER

METROPOLITAN LIFE INSURANCE
COMPANY, et al.,
Defendants.

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This matter comes before the court on plaintiff’s motions to strike defendants’ answer and

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for default judgment. ECF Nos. 83, 84. Defendants filed oppositions to the motions, ECF Nos.

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85, 86, and plaintiff filed amended replies, ECF Nos. 93, 94. After reviewing the briefing, the

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undersigned determined no hearing was necessary and plaintiff’s motions were submitted on the

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papers. ECF Nos. 92.

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I. MOTION TO STRIKE
Plaintiff seeks to strike defendant’s answer or, in the alternative, three of defendants’

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affirmative defenses. ECF No. 83. Federal Rule of Civil Procedure (“Rule”) 12(f) provides that

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“[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.” However, motions to strike are “generally regarded with

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disfavor because of the limited importance of pleading in federal practice, and because they are
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often used as a delaying tactic.” Neilson v. Union Bank of California, N.A., 290 F.Supp.2d 1101,

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1152 (C.D. Cal. 2003) (citations omitted).

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Here, the court finds that defendants’ delay in filing the answer does not support striking

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the pleading as a whole, as plaintiff was not prejudiced. Furthermore, the court finds that the

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answer is properly pled and “state[s] in short and plain terms [defendants’] defenses to each claim

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asserted against [them].” See Fed. R. Civ. Proc. 8(b). The answer thus serves its core function of

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notifying plaintiff of the theories of defense upon which defendants intend to rely. None of those

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theories are legally defective. Any error in the designation of particular defenses as “affirmative”

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is harmless. Accordingly, the court does not find the answer is “redundant, immaterial,

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impertinent, or scandalous.” See Fed. R. Civ. Proc. 12(f). Plaintiff’s motion to strike is therefore

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denied.

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II. MOTION FOR DEFAULT JUDGEMENT

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Plaintiff also seeks default judgement against defendants based on the untimely filing of

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defendants’ answer. ECF No. 84 at 2. However, a party seeking default judgment must first

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request and obtain entry of default from the Clerk’s Office pursuant to Rule 55(a). Plaintiff did

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not do so here, and the motion for default judgment is therefore procedurally improper and must

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be denied. Moreover, default cannot be had because defendants have filed their answer. While

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the answer was late, defendants filed a declaration explaining their delay. ECF No. 86-1.

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Accordingly, defendants have answered and have demonstrated their intent to defend against

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plaintiff’s allegations. Moreover, there does not appear to be any prejudice to plaintiff. For these

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reasons, the court will deny the motion for default judgment. See Hoang Minh Tran v. Gore, No.

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10cv2457 BTM(WVG), 2012 WL 2501036, at *1, 2012 U.S. Dist. LEXIS 89941, at *3 (S.D. Cal.

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June 27, 2012) (declining to enter default where defendant filed late answer and there was no

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prejudice to plaintiff); see also Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th

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Cir. 2009) (“As a general rule, default judgments are disfavored; cases should be decided upon

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their merits whenever reasonably possible.”).

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III. CONCLUSION

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For the reasons explained above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Motion to Strike, ECF No. 83, is DENIED; and

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2. Plaintiff’s Motion for Default Judgment, ECF No. 84, is DENIED.

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IT IS SO ORDERED.

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DATED: June 1, 2018

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