Electrolux Home Prod v. Whitesell Corp

Filing 1434

ORDER denying 1307 Motion to Strike and Motion for Summary Judgment on Defendant's affirmative defenses. Signed by Chief Judge J. Randal Hall on 12/15/2020. (pts)

Case 1:03-cv-00050-JRH Document 1434 Filed 12/15/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

WHITESELL CORPORATION,

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*

Plaintiff,

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CV 103-050

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ELECTROLUX HOME PRODUCTS, INC.,

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HUSQVARNA, A.B., and HUSQVARNA

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OUTDOOR PRODUCTS, INC.,

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Defendants.

ORDER

Presently before the Court is Plaintiff Whitesell Corporation's
motion to

strike

and

motion for summary judgment on Defendants'

affirmative defenses.

The

operative

complaint

in

the

case,

Complaint, was filed on June 5, 2014.

the

Second

Amended

Defendant Electrolux Home

Products, Inc. answered separately from the Husqvarna Defendants on

June

23,

2014,

though

Defendants

asserted

nearly

identical

affirmative defenses.

Through its motion. Plaintiff seeks to strike the affirmative
defenses because Defendants have failed to provide fair notice of the
nature of the defenses and the grounds upon which the defenses rest.

Further, Plaintiff argues that many of the affirmative defenses are
mere denials, not affirmative defenses.

Finally, Plaintiff seeks

summary judgment on the affirmative defenses.

Case 1:03-cv-00050-JRH Document 1434 Filed 12/15/20 Page 2 of 3

Federal Rule of Civil Procedure 12(f) provides that the Court

may strike an insufficient defense upon motion of a party filed within
21 days after the pleading is served. Suffice to say that Plaintiff's
motion to strike is woefully out of time.

And, the Court will not

exercise its discretion to strike sua sponte any affirmative defense
at this time.

With respect to Plaintiff's motion for summary judgment, the
Court notes that the Statement of Undisputed Material Facts in support
thereof

is substantially similar

to

the

Statement of

Undisputed

Material Facts filed in connection with other motions premised upon

Plaintiff's position that Defendants breached the contracts between

the parties in failing to timely transition Brunner and Matrix parts
or provide mutually agreeable substitute parts.

However, the Court

has previously determined that the "why" or "attribution of fault"
for this failed transition is a matter for jury resolution.

e.g., Order of Sept. 10, 2020, Doc. No. 1410, at 4.)

(See,

Thus, the Court

finds Plaintiff's reliance on these "undisputed" facts to support

summary

judgment

on

any

of

the

asserted

affirmative

defenses

unavailing.
In short, the Court will allow Defendants' affirmative defenses

to stand without prejudice to Plaintiff to renew a more specific
objection to a particular affirmative defense. That is to say, should
Defendants seek to assert at this late stage an affirmative defense

heretofore

unraised,

undeveloped,

or

unexplored

such

that

it

surprises Plaintiff in some articulable way. Defendants' use of said
2

Case 1:03-cv-00050-JRH Document 1434 Filed 12/15/20 Page 3 of 3

defense

will be subject to a timeliness review

analysis.

and a prejudice

Of note, the Court recognizes here that the Eleventh

Circuit has held that a defendant may be permitted to raise an unplead
affirmative defense at trial so long as the plaintiff had some notice
of the defense.

See Hassan v. U.S. Postal Serv., 842 F.2d 260, 263

(11*^^ Cir. 1988) {"[W]hen the failure to raise an affirmative defense

does not prejudice the plaintiff, it is not error for the trial court
to hear evidence on the issue."), cited in Hewitt v. Mobile Research

Tech., Inc., 285 F. App'x 694, 696 (11*=^ cir. 2008); Jones v. Miles,
656 F.2d 103, 107 n.7 {5^^^ Cir. Unit B 1981) ("Failure to affirmatively

plead the defense is simply noncompliance with a technicality and
does not constitute a waiver where there is no claim of surprise.").

Accordingly, it would be a waste of judicial resources to put the
Court through the paces of striking affirmative defenses that, if

they had not been pled. Defendants could nevertheless raise at trial,
assuming there was no prejudice to Plaintiff.

Upon the foregoing. Plaintiff Whitesell's motion to strike and
motion for summary judgment on Defendants' affirmative defenses (doc.
no. 1307) is DENIED.

ORDER ENTERED at Augusta, Georgia, this

of December,

2020 .

jT"r^Sali^ll7chief^dg^
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA