Andrew Smith Company v. Paul's Pak Inc., et al

Filing 375

ORDER granting 319 Motion to Strike (rmwlc2, COURT STAFF) (Filed on 10/5/2011)

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E-filed on:

10/5/2011

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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ANDREW SMITH COMPANY, a general
partnership,

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Plaintiff,

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v.

No. C-08-04802 RMW
ORDER GRANTING PAUL'S PAK, INC.'S
MOTION TO STRIKE PREMIUM FRESH
FARMS, LLC.'S ANSWER TO PAUL'S PAK,
INC.'S SECOND AMENDED
COUNTERCLAIM

PAUL'S PAK, INC.; PREMIUM FRESH
FARMS, LLC; PDP & ASSOCIATES, LLC;
AG HARVESTING & TECHNOLOGIES,
LLC; ESV INVESTMENTS, LLC;
SALVADOR PAUL TARANTINO; PAUL S.
TARANTINO; JOHN L. SIMMONS; EMMIT
L. PFOST; JACK PARSON; STEVEN A.
CINELLI; JOHN D. TAMAGNI; ROBERT
ELLIOTT; JAMES S. TAMAGNI; RICHARD
TAMAGNI; STEVE CHURCH; THOMAS
CHURCH; DAVID GILL; CHURCH
BROTHERS, LLC; and TRUE LEAF FARMS,
LLC,

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Defendants.

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Defendant, counter-claimant, and counter-defendant Paul's Pak, Inc. ("Paul's Pak") moves to

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strike the answer of Premium Fresh Farms, LLC ("Premium Fresh") to Paul's Pak's second amended

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counterclaim. Premium Fresh has filed no opposition to the motion. The motion is granted as

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explained below.

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Paul's Pak filed its first amended counterclaim on June 5, 2009. On June 23, 2009, Premium
Fresh filed an answer to the first amended counterclaim. Paul's Pak filed a second amended
ORDER GRANTING MOTION TO STRIKE SECOND AMENDED ANSWER

C-08-04802
MEC

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counterclaim on December 3, 2009, but did not change any of the allegations against Premium

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Fresh. Premium Fresh did not answer the second amended counterclaim, and Paul's Pak did not seek

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default judgment.

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On November 17, 2010, the court found that Paul's Pak was entitled to judgment as a matter

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of law in favor of its claim for breach of the 2007 Agreement by Premium Fresh. In that order, the

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court declined to consider failure to mitigate damages as a defense to the breach of contract claim

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because failure to mitigate damages had not been raised as an affirmative defense in Premium

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Fresh's answer to the first amended counterclaim. On November 18, 2010, after partial summary

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judgment had been granted and more than nine months after an answer would have been due under

United States District Court
For the Northern District of California

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the Rules of Civil Procedure, Premium Fresh filed an answer to Paul's Pak's second amended

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counterclaim. The amended answer attempts to raise twenty-four new affirmative defenses,

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including failure to mitigate damages, which the court declined to consider in its summary judgment

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order, and waiver, which the court considered and rejected in its summary judgment order.

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Federal Rule of Civil Procedure 12(f) permits the court the strike any pleading filed beyond

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the time permitted by the Rules of Civil Procedure if the pleader failed to obtain an extension or

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leave from the court to file the pleading late. See Canady v. Erbe Elektromedizin, 307 F. Supp. 2d 2,

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7-8 (D.D.C. 2004). Motions to strike are disfavored. Id. However, the court has already considered

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and granted summary judgment on the issues pled in the second amended counterclaim. It is simply

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too late for Premium Fresh now to raise new affirmative defenses, particularly issues that were

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raised and rejected at summary judgment because they had not been pled. The motion to strike is

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granted.

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DATED:

10/5/11
RONALD M. WHYTE
United States District Judge

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ORDER GRANTING MOTION TO STRIKE SECOND AMENDED ANSWER

C-08-04802
MEC

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