Florer v. Ford Motor Service Company Inc., et al.

Filing 115

REPORT AND RECOMMENDATION RE: re 86 MOTION for Default Judgment - RECOMMENDATION: NOW THEREFORE IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Entry of Default Judgment (Dkt. 86) be DENIED. MEMORANDUM DECISION AND ORDER RE: MOTION TO STRIKE - NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion to Strike (Dkt. 96 ) is DENIED. Signed by US Magistrate Judge Debora K Grasham. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

D. SCOTT FLORER,
Case No. 1:22-CV-00449-BLW-DKG

Plaintiff,
vs.
FORD MOTOR COMPANY; LITHIA
FORD OF BOISE, INC.; RHETT
SHEEDER; RICH STUART; ANGELO
SANCHEZ; TRAVIS STEER; LISA
CRABTREE, SUED IN THEIR
INDIVIDUAL AND OFFICIAL
CAPACITIES,

REPORT AND
RECOMMENDATION RE:
MOTION FOR DEFAULT
JUDGMENT
MEMORANDUM DECISION
AND ORDER RE: MOTION
TO STRIKE

Defendants.

INTRODUCTION
Before the Court in the above-entitled matter are Plaintiff’s Motion for Entry of
Default Judgment against Lithia Ford of Boise and Motion to Strike Lithia Ford of Boise’s
Amended Answer (Dkt. 86, 96), which have been referred to the undersigned by District
Judge Winmill.1 (Dkt. 53). The motions have been fully briefed and are ripe for the Court’s

Federal Rule of Civil Procedure 72(a) provides that “[w]hen a pretrial matter not
dispositive of a party’s claim or defense is referred to a magistrate judge to hear and
decide, the magistrate judge must. . . when appropriate, issue a written order stating a
decision.” Fed. R. Civ. P. 72(a). In contrast, a magistrate judge when hearing a pretrial
matter dispositive of a claim or defense, must enter a recommended disposition. Fed. R.
Civ. P. 72(b)(1).
1

REPORT AND RECOMMENDATION; ORDER - 1

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consideration. (Dkt. 86, 87, 96, 97, 106, 107, 108, 109). Having fully reviewed the record
herein, the Court finds the facts and legal arguments are adequately presented in the briefs
and record. Accordingly, in the interest of avoiding delay, and because the decisional
process would not be aided by oral argument, the motions will be decided on the record
presently before the Court. Dist. Idaho L. Rule 7.1(d). For the reasons that follow, the Court
recommends that the Motion for Entry of Default Judgment be denied. Furthermore, the
Motion to Strike will be denied.
BACKGROUND
This case arises from a customer dispute over vehicle repairs and applicable
warranty terms. In July 2020, Plaintiff D. Scott Florer contacted a Boise Lithia Motors
repair center for assistance with replacing his truck engine. (Dkt. 1 at 4). After a series of
events and communications with the repair center staff between July 2020 and September
2021, Florer alleges the repair center was unable to resolve the problem with the engine.
(Dkt. 1 at 4-14).
On October 26, 2022, Florer filed a Complaint with the Court alleging six total
claims against Defendants under the Magnuson-Moss Warranty Act (“MMWA”) and
various Idaho state law provisions. (Dkt 1 at 15-19). Lithia Ford of Boise was not originally
named as a defendant in Florer’s first Complaint, instead the Complaint identified “Lithia
Motors Support Services Inc.”. (Dkt. 1 at 1-3). The corporations listed on the initial
summonses did not match the corporations identified in the Complaint, but nonetheless, a
summons was issued for Lithia Ford of Boise. (Dkt 15). Lithia Ford of Boise filed an
answer to Florer’s initial Complaint and has been participating in the litigation. (Dkt. 36,
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38, 49). On June 04, 2023, Florer was directed to file an amended complaint naming the
proper defendants and the Court found that despite not being named in the initial
Complaint, Lithia Ford of Boise is properly before the Court as a defendant in this action.
(Dkt. 63 at 8).
On June 16, 2023, Plaintiff filed his First Amended Complaint. (Dkt. 65). The same
counsel represents Lithia Ford of Boise and the five named individuals employed by Lithia
at the time the events triggering filing of the present case occurred. (Dkt. 107 at 2). The
individual employees filed an Answer to Florer’s First Amended Complaint on August 4,
2023, but the entity, Lithia Ford of Boise, was not listed as an answering defendant. (Dkt.
77). On August 25, 2023, Florer filed a Motion for Default Judgment against Lithia Ford
of Boise pursuant to Federal Rule of Civil Procedure 55(a), arguing the Answer filed did
not identify Lithia Ford of Boise, and therefore they have failed to file a responsive
pleading or otherwise defend. (Dkt. 86). On August 28, 2023, counsel for Lithia and the
individual employees filed an Amended Answer to Florer’s First Amended Complaint,
naming the answering defendants as both the entity Lithia Ford of Boise and the previously
named individual employees. (Dkt. 90). Lithia Ford of Boise also filed a response to
Florer’s Motion for Default Judgment, asserting that the Lithia entity was inadvertently
omitted from the initial description of the answering defendants due to a scrivener’s error.
(Dkt. 107 at 2).
Additionally, Florer filed a Motion to Strike Lithia Ford of Boise’s Amended
Answer, because it was filed beyond the timeframe to file a responsive pleading pursuant
to Federal Rule of Civil Procedure 12(a)(1)(A)(i) and (f). (Dkt. 96). Lithia Ford of Boise
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responded, arguing the remedy sought by Florer on the basis of a typographical error would
be inappropriate and there is no good cause to strike Lithia’s Amended Answer from the
record. (Dkt. 106 at 2).
LEGAL STANDARDS
Pursuant to Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom
a judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by these rules, and the fact is made to appear by affidavit or otherwise, the clerk
must enter the party’s default.” Fed. R. Civ. P. 55(a). A judgment of default may,
thereafter, be entered on application to the Court. Thomason v. Moeller, 2017 U.S. Dist.
LEXIS 8462 at *23 (D. Idaho Jan. 29, 2017). See Fed. R. Civ. P. 55(b); Eitel v. McCool,
782 F.2d 1470, 1471 (9th Cir. 1986) (noting the “two-step process” required by Rule 55:
(1) request for clerk’s entry of default under Rule 55(a); and (2) subsequent motion for
default judgment under Rule 55(b)).
There exists a “strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits.” Eitel, 782 F.2d at 1472. Default by a defendant does not
automatically entitle plaintiff to a court-ordered judgment, the Court’s decision whether to
enter a default judgement is a discretionary one. Aldabe v. Aldabe, 616 F. 2d 1089, 1092
(9th Cir. 1980). “Factors which may be considered by courts in exercising discretion as to
the entry of default judgment include: (1) the possibility of prejudice to the plaintiff, (2)
the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum
of money at stake in the action, (5) the possibility of a dispute concerning material facts,
(6) whether the default was due to excusable neglect, and (7) the strong policy underlying
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the Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel, 782 F.2d at
1471-72.
Federal Rule of Civil Procedure 12(f) allows the court to strike from “any pleading
any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the
expenditure of time and money that must arise from litigating spurious issues by
dispensing with those issues prior to trial. . ..” Sidney-Vinstein v. A.H. Robins Co., 697
F.2d 880, 885 (9th Cir. 1983). “Rule 12(f) motions are ‘generally regarded with
disfavor[.]’” Hayes v. Nettles, 2019 U.S. Dist. LEXIS 190220 at *3 (D. Idaho Oct. 29,
2019) (citing Neilson v. Union Bank of Cal., 290 F. Supp. 2d 1101, 1152 (C.D. Cal.
2003). See also Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal.
1991) (“[M]otions to strike should not be granted unless it is clear that the matter to
be stricken could have no possible bearing on the subject matter of the litigation.”).
Granting a motion to strike is a discretionary determination to be made by the court. See
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).
DISCUSSION
1. Motion for Default Judgment
There are several procedural and substantive problems with Florer’s Motion for
Default Judgment against Lithia Ford of Boise. First, Florer has improperly asked this
Court to enter a default judgment without first obtaining an entry of default by the clerk,
in accordance with the requirements of Rule 55. Fed. R. Civ. P. 55; Bach v. Mason, 190
F.R.D. 567, 574 (D. Idaho Oct. 21, 1999) (“Plaintiffs have improperly asked this court to
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enter a default judgment without first obtaining an entry of default by the clerk. Since
plaintiffs’ motion for entry of default judgment is improper, it is denied.”).
However, even if the Court were to treat Florer’s motion as having complied with
the procedural requirements of Rule 55, the harsh sanction of default judgment against
Lithia Ford of Boise is not warranted here. Fed. R. Civ. P. 55. Although Lithia was not
originally named as a defendant in Florer’s initial complaint, the Court found that Lithia
was a proper defendant in this case, especially as they had already answered the initial
complaint and submitted a corporate disclosure statement and discovery plan. (Dkt. 36,
38, 43). Lithia has also responded to multiple of Florer’s motions. (Dkt. 93, 101, 106,
107).
While the Court cautions Lithia to be diligent in their filings to include the names
of all responding or answering parties, the Eital factors weigh strongly against the entry
of default judgment here. 782 F.2d at 1471-72. Florer makes no convincing showing of
prejudice resulting from Lithia not being listed as an answering defendant when the
initial Answer (Dkt. 77) was originally filed. Lithia’s Amended Answer was filed 24 days
later, containing the exact same information as stated in the original Answer, but
including the entity, Lithia Ford of Boise, as an answering defendant. Although Florer
has since spent additional time and resources filing this Motion for Default Judgment, the
Motion was prematurely filed before a clerk’s entry of default. Florer was provided with
all the information available in the initial Answer to his Amended Complaint prior to
filing this motion, and Lithia has previously and since shown a willingness to defend
against Florer’s claims. The case is still in the discovery phase, and no interruption has
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been occasioned by the delay in listing the entity, Lithia, as an answering defendant in the
initial Answer. The Court is not persuaded that Florer was prejudiced by the delay in
amending the Answer to include Lithia Ford of Boise as an answering defendant.
Additionally, the failure to list Lithia as an answering defendant appears to be due
to excusable neglect. Lithia gives a good faith explanation (scrivener’s error) for not
listing Lithia as an answering defendant along with the individual employees. (Dkt. 107).
Lithia states the name was inadvertently omitted and went unnoticed by counsel. (Dkt.
107, 107-1). Counsel for Lithia responded to Florer’s email the day the initial answer to
the Amended Complaint was filed, informing him that an answer had been filed2. (Dkt.
108-1). A finding of excusable neglect in failing to include Lithia Ford of Boise is further
supported considering the Amended Answer is identical to the initial Answer, except for
the inclusion of Lithia Ford of Boise as an answering defendant. (Dkt. 77, 90).
Florer also argues default judgment is warranted because both the initial Answer
in which Lithia was omitted as an answering defendant, and the subsequent Amended
Answer including Lithia among the answering defendants, was untimely filed. (Dkt.
108). However, despite the untimely nature of Lithia’s Answer, the Ninth Circuit

2

Counsel for Lithia Ford and the individual employees responded via email on August
4 , 2023, to a letter from Florer asking if an answer would be filed, stating, “The answer
to your amended complaint was filed today.” (Dkt. 108-1). Florer argues that counsel for
Lithia was aware that the amended answer did not include Lithia Ford of Boise because
he told them via email, “Default on Lithia Ford coming soon” and stated in a letter that
“no one represents Lithia Ford of Boise”. (Dkt. 108-1). However, per the Affidavit by
counsel who prepared the initial amended answer (Dkt. 77), she did not notice the
inadvertent omission of Lithia Ford of Boise in the list of answering defendants and
intended to answer on behalf of all defendants represented by the corresponding law firm.
(Dkt 107-1 at ¶¶ 4, 7-8).
th

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disfavors default judgment, and has set aside an entry of default where good cause exists
for the failure to timely file. See TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691,
693 (9th Cir. 2001); Fed. R. Civ. P. 55(c). Good cause can be established where
defendants did not engage in culpable conduct, and conduct is not culpable if “the
defendant offers a credible, good faith explanation negating any intention to take
advantage of the opposing party, interfere with judicial decision-making, or otherwise
manipulate the legal process.” TCI, 244 F.3d at 697. The Court cannot identify what
benefit Lithia would derive by intentionally not being listed as an answering defendant in
the initial Answer to Florer’s Amended Complaint, and the affidavit by Lithia’s counsel
supports a finding that there is a good faith explanation for Lithia’s omission in the initial
Answer. (Dkt. 107, 107-1). The Court finds Lithia did not engage in culpable conduct
necessitating the entry of default judgment in this case.
Lithia’s failure to timely answer and include the entity name along with the
individual employees in their initial Answer to Florer’s Amended Complaint does not
warrant an entry of default judgment, especially considering the general policy
underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eital,
782 F.2d at 1472. Because the Eital factors weigh heavily against an entry of default
judgment, the Court recommends that Florer’s Motion for Entry of Default Judgment be
denied.
2. Motion to Strike
Florer motions to strike Lithia Ford of Boise’s Amended Answer (Dkt. 90), for
failure to timely file a responsive pleading as required by Federal Rule of Civil Procedure
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12.3 (Dkt. 96, 97). Florer moves to strike pursuant to Rule 12(f), which provides that
“[t]he court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Florer does not state
an applicable Rule 12(f) ground to strike the pleading in his Motion, stating merely that
the answer is untimely. (Dkt. 96, 97). However, in his reply, Florer alleges he was
prejudiced by Lithia’s answer, and it relates to a “scandalous matter”. Fed. R. Civ. P.
12(f); (Dkt. 109).
Florer’s argument that he is prejudiced by Lithia’s delay in answering his
Amended Complaint is not supported. Florer argues he is prejudiced because Lithia is in
default and therefore the case between Florer and Lithia Ford is over. (Dkt. 109).
Although Lithia Ford of Boise did not timely answer, there was no entry of default as to
Lithia and as explained in greater detail above, it is recommended that the Court decline
to enter default judgment against Lithia Ford of Boise. Discovery is still ongoing between
the parties, and all information in Lithia’s Amended Answer was available to Florer when
the initial Answer was filed, just without Lithia Ford listed among the defendants. (Dkt.
77). Florer has not demonstrated prejudice to warrant the Court striking Lithia’s
Amended Answer.

Florer cites to Rule 12 when arguing Lithia’s Amended Answer is untimely. The
applicable rule for responding to amended pleadings is Federal Rule of Civil Procedure
15, which provides that “[u]nless the court orders otherwise, any required response to an
amended pleading must be made. . .within 14 days after service of the amended pleading.
. .” Fed. R. Civ. P. 15(3). However, whether the Amended Answer should have been filed
in 14 or 21 days, as required under Rule 12, does not change the Court’s outcome on
Florer’s Motion to Strike. Fed. R. Civ. P. 12.
3

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Further, Florer argues that Lithia’s Answer should be stricken because it is a
“scandalous matter” under Rule 12(f), insofar as Lithia did not file an Amended Answer
including the entity name as an answering defendant until after Florer had filed his
Motion for Default Judgment. (Dkt. 109). However, “[s]candalous matters are allegations
that ‘unnecessarily reflect[] on the moral character of an individual or state[] anything in
repulsive language that detracts from the dignity of the court.’” Consumer Sols. REO,
LLC v. Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 2009) (citations omitted). None of
the information in Lithia’s Answer or the fact that it was not filed in a timely matter is
considered scandalous in the context of Rule 12(f). Florer has made no credible claim
which would warrant striking Lithia’s Amended Answer from the record.
RECOMMENDATION
NOW THEREFORE IT IS HEREBY RECOMMENDED that Plaintiff’s Motion for
Entry of Default Judgment (Dkt. 86) be DENIED.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike
(Dkt. 96) is DENIED.

DATED: October 18, 2023

_________________________
Honorable Debora K. Grasham
United States Magistrate Judge

REPORT AND RECOMMENDATION; ORDER - 10