Maronda Homes, Inc. of Florida v. Progressive Express Insurance Company

Filing 54

ORDER denying 51 Motion to Strike. Signed by Magistrate Judge Thomas B. Smith on 1/6/2015. (SMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARONDA HOMES, INC. OF FLORIDA,
Plaintiff,
v.

Case No: 6:14-cv-1287-Orl-31TBS

PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Defendant.
ORDER
This matter comes before the Court on Defendant Progressive Express Insurance
Company’s (“Progressive”) Motion to Strike Portions of Plaintiff’s Complaint. (Doc. 51).
The motion will be DENIED because striking the objected-to paragraphs at this stage of
the litigation would serve no useful purpose.
Background
Carlos Merida was injured when his vehicle was struck by a truck driven by Terry
Chance. (Doc. 2, ¶¶ 6-7). When the accident occurred, Chance was hauling
construction materials to Plaintiff Maronda Homes of Florida, Inc.’s (“Maronda”) job sites
under a contract between Maronda and Chance’s employer, AC&L Farms, Inc. and/or
Angela S. Lively d/b/a All Trucking. (Id., ¶¶ 7-8). Following the accident, Merida
brought a negligence action in state court against Chance, Maronda, AC&L, and All
Trucking. (Id., ¶ 6). Maronda, through its lawyer Steven M. Brady (1) filed an answer
and affirmative defenses to Merida’s complaint, (2) informed its insurance carrier,
Defendant Progressive Express Insurance Company about the lawsuit, (3) asked

Progressive to provide a defense, and (4) asked Progressive to provide all of the
disclosures required by § 627.4137 Florida Statutes.1 (Id., ¶¶ 11-13).
Progressive directed a staff attorney member of its in-house law firm to appear and
defend all four defendants.2 (Id. ¶ 14). Maronda declined representation by the staff
attorney on the ground that conflicts of interest existed between the four defendants.
(Id., ¶¶ 14–21). It also renewed its request for information made pursuant to § 627.4137.
(Id., ¶ 21). Progressive responded by hiring a second lawyer to represent only Maronda.
(Id., ¶ 24). Maronda desired to amend its answer and affirmative defenses to add crossclaims against its co-defendants. (Id., ¶ 21). The new lawyer hired by Progressive told
Maronda “he would be reluctant to take positions in litigation that were adverse to

1

The statute provides:

(1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim
which might be made shall provide, within 30 days of the written request of the claimant, a statement, under
oath, of a corporate officer or the insurer's claims manager or superintendent setting forth the following
information with regard to each known policy of insurance, including excess or umbrella insurance:
(a) The name of the insurer.
(b) The name of each insured.
(c) The limits of the liability coverage.
(d) A statement of any policy or coverage defense which such insurer reasonably believes is available to
such insurer at the time of filing such statement.
(e) A copy of the policy.
In addition, the insured, or her or his insurance agent, upon written request of the claimant or the claimant's
attorney, shall disclose the name and coverage of each known insurer to the claimant and shall forward
such request for information as required by this subsection to all affected insurers. The insurer shall then
supply the information required in this subsection to the claimant within 30 days of receipt of such request.
(2) The statement required by subsection (1) shall be amended immediately upon discovery of facts calling
for an amendment to such statement.
(3) Any request made to a self-insured corporation pursuant to this section shall be sent by certified mail to
the registered agent of the disclosing entity.
Apparently, one or more of the other state court defendants also had insurance policies with
Progressive.
2

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Progressive because he did not want to jeopardize his business relationship with
Progressive.” (Id., ¶ 29). Maronda alleges that because this lawyer’s true allegiances
were to Progressive it “had no choice but to conditionally decline the defense provided by
Progressive as being legally insufficient.” (Id.). In the absence of an acceptable lawyer
supplied by Progressive, Brady has continued to represent Maronda in the state court
case.
On June 27, 2014, Maronda filed this lawsuit in state court, seeking a declaration
that Progressive breached the terms of the parties’ insurance contract, and for damages
for “insurance benefits, interest, costs, underlying defense fees and costs in the
underlying case..., and attorney fees for this action pursuant to” FLA. STAT. § 627.428.
(Doc. 2). Progressive removed the lawsuit to this Court pursuant to 28 U.S.C. §§ 1332,
1441 and 1446 and moved for dismissal of Maronda’s claims. (Docs. 1, 5). On
December 10, 2014, the Court dismissed Maronda’s declaratory judgment claim and
otherwise denying Progressive’s motion to dismiss. (Doc. 50). On December 22,
Progressive filed its answer and the pending motion to strike. (Docs. 52, 53). The
motion asks the court to strike the following paragraphs from Maronda’s complaint:
41. Progressive failed to respond to Maronda’s requests for
insurance information under Section 627.4137 as alleged
herein.
42. Progressive improperly advised Maronda about the
available coverage for the claims in the underlying action as
$300,000. This is/was false.
43. Progressive wasted the available coverage under the
policy by settling out with a third party without consulting
Maronda.
45. Progressive’s staff attorney improperly advised Maronda
about the available insurance coverage for the claims in the
underlying action.

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(Doc. 51, p. 2).
Discussion
Rule 12(f) of the Federal Rules of Civil Procedure allows a court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Courts have long regarded motions to strike with skepticism. “‘Particularly
because of the practical difficulty of deciding cases without a factual record it is well
established that the action of striking a pleading should be sparingly used by the courts.
It is a drastic remedy to be resorted to only when required for the purposes of justice.
The motion to strike should be granted only when the pleading to be stricken has no
possible relation to the controversy.’” Augustus v. Board of Public Instruction, 306 F.2d
862, 868 (5th Cir. 1962) (quoting Brown & Williamson Tobacco Corp. v. United States,
201 F.2d 819, 822 (6th Cir. 1953)). See also Beepot v. J.P. Morgan Chase National
Corporate Services, Inc., No. 3:10-cv-423-J-34PDB, __ F. Supp. 3d. __, __, n. 1 (M.D.
Fla. Oct. 30, 2014) (criticizing parties for filing multiple motions to strike which the court
found to be “a waste of time and resources”); Regions Bank v. Commonwealth Land Title
Ins. Co., No. 11-23257-CIV, 2012 WL 5410609, at *4 (S.D. Fla. Nov. 6, 2012) (“Rule 12(f)
motions to strike are often considered purely cosmetic or ‘time wasters.’”).
Progressive argues that the allegations in paragraphs 41–43 and 45 are
“inaccurate” and “are included solely in an effort to prejudice the finder of fact against
Progressive and in favor of [Maronda’s] claims.” (Doc. 51, ¶ 3). The proper response to
an allegation in a complaint that the defendant believes to be inaccurate is to deny the
allegation in the answer, which Progressive has done here. (See Doc. 52). To the
extent that the allegations in the four paragraphs might unfairly prejudice Progressive if
presented to the jury at trial, that is a problem better addressed by the trial judge in the

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pretrial order, an order on a motion in limine, or at the trial itself. Cf. Wanecke v.
Northwest Airlines, 10 F.R.D. 403, 403 (N.D. Ohio 1950) (“Although the language
assailed perhaps may not perform any useful function in the complaint, prejudice to the
defendant, in the event the proposed evidence is excluded at the time of trial, can be
prevented either by proper instruction to the jury or by refusal to submit the pleadings to
the jury.”). Accordingly, Progressive’s motion is DENIED.
Yet again, the Court finds it necessary to emphasize to counsel for both parties the
need to comply with Local Rule 3.01(g). (See Docs. 41, 48; see also Doc. 11 (denying
motion to vacate clerk’s default for failure to comply with Rule 3.01(g))). The rule reads,
in full:
Before filing any motion in a civil case, except a motion for
injunctive relief, for judgment on the pleadings, for summary
judgment, to dismiss or to permit maintenance of a class
action, to dismiss for failure to state a claim upon which relief
can be granted, or to involuntarily dismiss an action, 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) stating whether counsel agree on the resolution of the
motion. A certification to the effect that opposing counsel was
unavailable for a conference before filing a motion is
insufficient to satisfy the parties’ obligation to confer. The
moving party retains the duty to contact opposing counsel
expeditiously after filing and to supplement the motion
promptly with a statement certifying whether or to what extent
the parties have resolved the issue(s) presented in the motion.
If the interested parties agree to all or part of the relief sought
in any motion, the caption of the motion shall include the word
“unopposed,” “agreed,” or “stipulated” or otherwise succinctly
inform the reader that, as to all or part of the requested relief,
no opposition exists.
Progressive failed to comply with Local Rule 3.01(g) in filing the motion to strike.
In their Local Rule 3.01(g) certification, counsel for Progressive state that they “attempted

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to consult with counsel for Maronda Homes ... by calling and leaving a detailed message
about the motion and requesting a return call, and also sending a detailed email laying
out Progressive’s arguments. The email and phone call were four days prior to the filing
of this Motion. No response has been received.” (Doc. 51, ¶ 9). Local Rule 3.01(g)
requires an actual conference; an attempt to confer is not sufficient. Knights Armament
Co. v. Optical Systems Technology, Inc., 254 F.R.D. 470, 472 (M.D. Fla. 2008) (“[A]n
attempt to confer does not satisfy Local Rule 3.01(g).”). The Court recognizes that
sometimes, opposing counsel may be unwilling or unable to confer before the motion
must be filed.3 But in such a case the movant must “expeditiously” contact opposing
counsel and “supplement the motion promptly with a statement certifying whether or to
what extent the parties have resolved the issue(s) presented in the motion.” Progressive
failed to do so here. Counsel for Maronda also has a duty to promptly respond to
telephone calls and emails in which an opponent is seeking to meet and confer before a
motion is filed. If the counsel persist in not complying with Local Rule 3.01(g) the Court
will have to consider imposing sanctions. Cf. Smith v. Universal Health Care, Inc.,
No. 8:09-cv-1446-T-30TGW, 2010 WL 2757467, at *1 (M.D. Fla. July 13, 2010).
DONE and ORDERED in Orlando, Florida on January 6, 2015.

3 As the Court has noted before, counsel must respond promptly to inquiries and communications
from opposing counsel. Board of Governors of the Florida Bar, Ideals and Goals of Professionalism, ¶
6.10 and Creed of Professionalism ¶ 8 (adopted May 16, 1990), available at www.floridabar.org
(Professional Practice - Henry Latimer Center for Professionalism); see also Liberty Life Assurance Co. of
Boston v. Devillalvilla, No. 6:12-cv-1320-Orl-37TBS, 2014 WL 309084, at *7 (M.D. Fla. Jan. 28, 2014)
(defendant’s counsel ordered to show cause why he failed to respond to 3.01(g) inquiry, then ordered to
show cause why he should not be sanction after he failed to respond to first order); Martin v. Northwestern
Mutual Life Ins. Co., No. 8:04-cv-2328-T-23MAP, 2006 WL 148991, at *1 n. 2 (M.D. Fla. Jan. 19, 2006)
(plaintiff’s counsel’s failure to respond to “numerous” requests for 3.01(g) conference was “inexcusable”).

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Copies furnished to Counsel of Record

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