Rothchild et al v. Crane Co et al

Filing 43

OPINION AND ORDER denying 25 Motion to Strike. Signed by Judge Kenneth A. Marra on 8/1/2014. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 14-80271-CIV-MARRA
HERBERT ROTHCHILD and
AUDREY ROTHCHILD, his wife,
Plaintiffs,
v.
CRANE CO., FOSTER WHEELER
ENERGY CORPORATION;
LORILLARD TOBACCO COMPANY;
OWENS-ILLINOIS, INC., f/k/a OWENS
BOTTLE MACHINE CORP., f/k/a
OWENS BOTTLE CO., f/k/a OWENS-ILLINOIS
GLASS CO.; UNION CARBIDE
CORPORATION,
Defendants.
__________________________________________/
OPINION AND ORDER
This cause is before the Court upon Lorillard Tobacco Company’s Motion to Strike
Certain Allegations From Plaintiff’s First Amended Complaint [DE 25]. The motion is ripe for
this Court’s review. The Court has reviewed all submissions relating to this motion and is
otherwise duly advised in the premises.
Lorillard seeks to have the Court strike two portions of the Amended Complaint.
Paragraph 20(g) states that
Each Defendant who was in the business of manufacturing, selling
and/or distributing products during the times pertinent to this suit,
was negligent and/or failed to exercise reasonable care in one,
some and/or all of the following respects, the same being the
proximate cause of Plaintiff’s injuries and eventual death:
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g. In affirmatively misrepresenting to Plaintiff and other members
of the public in advertising, by labels or otherwise, that the
asbestos and/or asbestos-containing/contaminated products milled,
mined, manufactured, sold and/or distributed were safe in their
ordinary and foreseeable use, which material misrepresentations
induced Plaintiff to unknowingly expose himself to the hazards of
developing injuries including, but not limited to, mesothelioma,
asbestosis, lung cancer and/or other forms of cancer.
[DE 4 at 5, 7].
Lorillard argues that the conclusory allegations of affirmative misrepresentation contained
in this paragraph sound in fraud and are irrelevant to Plaintiff’s claims. [DE 25 at 2]. It further
argues that these allegations are scandalous matter meant to inflame the reader and prejudice
Lorillard.
Lorillard makes similar arguments relative to the allegations in Paragraph 39 of the
Amended Complaint. This paragraph states:
As a direct and proximate result of the negligence, carelessness,
gross negligence, strict liability, and/or willful omissions of the
Defendants as described herein, Plaintiff was caused to contract
mesothelioma herein causing Plaintiff pain, suffering and mental
anguish.
[DE 4 at 12].
Lorillard objects to the phrase “gross negligence . . . and/or willful omissions” as
immaterial and irrelevant and an improper attempt to seek punitive damages. [DE 25 at 3].
Lorillard seeks to have the language in these two paragraphs stricken. In the alternative,
it seeks an order clarifying that these allegations shall be construed by the Court solely as
allegations of fact. [Id. at 4].
In response, Plaintiff states that the language in Paragraph 20 is a factual allegation in

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support of Plaintiff’s negligence cause of action. Plaintiff argues that the language in Paragraph
39 is relevant to Plaintiff’s negligence claim and confirms that Plaintiff is not seeking punitive
damages. [DE 29 at 3]. Plaintiff has, therefore, essentially agreed to Lorillard’s alternative
request for relief.
Having reviewed the Amended Complaint, and the arguments of the Parties, the language
objected to does not meet the standard necessary to warrant striking the language from the
Amended Complaint. Rule 12(f) permits a court to “strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” A motion to strike,
however, is disfavored. As noted in Regions Bank v. Commonwealth Land Title Ins. Co., No. 1123257-CIV-RNS, 2012 WL 5410609, at *2 (S.D. Fla. Nov. 6, 2012),
“courts consider striking a pleading to be a ‘drastic remedy to be
resorted to only when required for the purposes of justice.’”Exhibit
Icons, LLC v. XP Cos., 609 F. Supp. 2d 1282, 1300 (S.D. Fla.
2009) (Marra, J.). Motions to strike are generally viewed with
disfavor, see Pandora Jewelers 1995, Inc. v. Pandora Jewelry,
LLC, 2010 WL 5393265, at *1 (S.D. Fla. Dec. 21, 2010) (Cooke,
J.), in part because they “waste time by requiring judges to engage
in busy work and judicial editing without addressing the merits of a
party's claim,”see U.S. Bank Nat'l Ass'n v. Alliant Energy Res.,
Inc., 2009 WL 1850813, at *3 (W.D. Wis. June 26, 2009) (Crabb,
J.). “Motions to strike,” therefore “will usually be denied unless the
allegations have no possible relation to the controversy and may
cause prejudice to one of the parties.”See Seibel v. Society Lease,
Inc., 969 F.Supp. 713, 715 (M.D.Fla.1997) (Kovachevich, J.).

With the clarification provided by Plaintiffs in their responding papers, the Court does not
think that the language in the Amended Complaint is inappropriate. Furthermore, should this
case ultimately go before a jury, the Court’s charge will set forth the law to be applied by the
jury.
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Accordingly, it is hereby
ORDERED AND ADJUDGED that Lorillard Tobacco Company’s Motion to Strike
Certain Allegations From Plaintiff’s First Amended Complaint [DE 25] is DENIED.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 1st day of August, 2014.
________________________
KENNETH A. MARRA
United States District Judge

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