Miller et al v. Summers et al

Filing 75

ORDER denying 44 Defendants John M. Summers, Summers Gulf Management, LLC, and Corkscrew Management, LLC's Motions to Strike asserted in Defendants' Answer and Affirmative Defenses. Defendants John M. Summers, Summers Gulf Management, LLC, and Corkscrew Management, LLC are DIRECTED to file an amended Answer and Affirmative Defenses in accordance with this Order on or before October 2, 2015. Signed by Judge Sheri Polster Chappell on 9/25/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEPHANIE S. MILLER and SELECT
REAL
ESTATE
BY STEPHANIE
MILLER, INC.,
Plaintiffs,
v.

Case No: 2:14-cv-347-FtM-38DNF

JOHN M. SUMMERS, SUMMERS
GULF MANAGEMENT, LLC and
CORKSCREW MANAGEMENT, LLC,
Defendants/Third
Party Plaintiffs
BECKER & POLIAKOFF, P.A.,
Third Party Defendant.
/
ORDER1
This matter comes before the Court on Defendants John M. Summers, Summers
Gulf Management, LLC, and Corkscrew Management, LLC’s motions to strike, as
asserted in their Answer and Affirmative Defenses. (Doc. #44). Plaintiffs Stephanie S.
Miller and Select Real Estate by Stephanie Miller, Inc. filed an Opposition to the Motion
to Strike Impermissibly Embedded within Defendants’ Answer (Doc. #51). This matter is
ripe for review.

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In 2012, Plaintiffs and Defendants were involved a commercial real estate
transaction that went south.

As a result, Plaintiffs commenced this suit against

Defendants alleging fraudulent misrepresentation, fraudulent concealment, tortious
interference with business relationship, breach of contract and of duty of good faith and
fair dealing, and violation of Florida Deceptive and Unfair Trade Practices Act. (Doc. #1
at ¶¶ 49-74). Defendants filed an Answer and Affirmative Defenses that also contained
three motions to strike. (Doc. #44).
Under Rule 12(f) of the Federal Rules of Civil Procedure, a court "may strike from
a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter." Fed. R. Civ. P. 12(f). A motion to strike is a drastic remedy that will
ordinarily be denied unless the material sought to be stricken is insufficient as a matter of
law. See Guididas v. Cmty. Nat'l Bank Corp., No. 8:11-cv-2545, 2013 WL 230243, at *1
(M.D. Fla. Jan. 22, 2013); Gesell v. K–MartCorp., No. 2:11-cv-130, 2011 WL 3628878, at
*1 (M.D. Fla. Aug.3, 2011). A court typically does not exercise its discretion to strike a
pleading "unless the matter sought to be omitted has no possible relationship to the
controversy, may confuse the issues, or otherwise prejudice a party." Reyher v. Trans
World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995). Because this is a difficult
standard to satisfy, "[m]otions to strike are generally disfavored by the Court and are often
considered time wasters." Somerset Pharm., Inc., v. Kimball, 168 F.R.D. 69, 71 (M.D.
Fla. 1996) (internal quotations omitted).
As stated, Defendants' Answer contains three motions to strike portions of the
Complaint. (Doc. #44). They move to strike paragraph 48 of the Complaint, which reads
"[p]rior to the commencement of this action, Plaintiffs asked Defendants to mediate this

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dispute, but Defendants refused" (Doc. #1 at ¶ 48), as immaterial and impertinent and
because it invokes settlement communications that should not be disclosed to the jury.
(Doc. #44 at 6). Next, Plaintiffs' demand for attorneys' fees in accordance with the parties'
short-sale contract; however, Defendants argue the demand is inappropriate because
Plaintiffs' breach of contract claim involves a different contract from the short-sale
contract. (Doc. #44 at 7-8). Finally, Defendants argue that Florida Statute § 768.72
prohibits Plaintiffs' request for punitive damages in Counts I through IV." (Doc. #44 at 910).
Before discussing the merits of Defendants' motions to strike, the Court finds that
the motions are procedurally barred. They fail to comply with Local Rule 3.01(g), which
requires, in pertinent part, that
[b]efore filing any motion in a civil case, . . . the moving party shall confer
with counsel for the opposing party in a good faith effort to resolve the issues
raised by the motion, and shall file with the motion a statement (1) certifying
that the moving counsel has conferred with opposing counsel and (2) state
whether counsel agree on the resolution of the motion.
M.D. Fla. Local Rule 3.01(g). This rule is designed to foster communication between the
parties and help resolve certain disputes without court intervention. See Desai v. Tire
Kingdom, Inc., 944 F. Supp. 876, 878 (M.D. Fla. 1996). The importance of Local Rule
3.01(g) in helping avoid needless litigation cannot be overstated, and violating this rule
"constitutes sufficient grounds to deny the relief sought by the noncompliant moving
party." Esrick v. Mitchell, No. 5:08-cv-50, 2008 WL 5111246, at *1 (M.D. Fla. Dec. 3,
2008). Defendants did not provide the requisite certification of conferring with opposing
counsel, the Court will deny the motions to strike on that ground. Moreover, Defendants'
motion to strike should have been filed separate from their Answer in order to apprise the

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Court of a pending request for relief. See M.D. Fla. Loc. R. 1.05, 3.01. Contrary to these
requirements, Defendants inserted the motion to strike in their responsive pleading and
did so at the same time as it answered. See Fed. R. Civ. P. 12(f) (permitting a party to
move to strike "either before responding to the pleading or, if a response is not allowed,
within 21 days after being served with the pleading" (emphasis added)). Even if the Court
ignored these procedural deficiencies, Defendants have not provided persuasive reasons
for the Court to exercise its direction and grant the motions to strike.
Accordingly, it is now
ORDERED:
1. Defendants John M. Summers, Summers Gulf Management, LLC, and
Corkscrew Management, LLC’s Motions to Strike asserted in Defendants'
Answer and Affirmative Defenses (Doc. #44) are DENIED.
2. Defendants John M. Summers, Summers Gulf Management, LLC, and
Corkscrew Management, LLC are DIRECTED to file an amended Answer and
Affirmative Defenses in accordance with this Order on or before October 2,
2015.
DONE and ORDERED in Fort Myers, Florida this 25th day of September, 2015.

Copies: All Parties of Record

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