Krispy Krunchy Foods, L.L.C. v. AMA Discount, Inc. et al

Filing 78

ORDER and REASONS granting 66 Motion to Strike 63 Proposed Findings of Fact & Conclusions of Law, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 1/22/2016. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KRISPY KRUNCHY FOODS, L.L.C.

CIVIL ACTION

VERSUS

NO. 15-590

AMA DISCOUNT, INC.,
d/b/a CHEF DISCOUNT MARKET,
ALI M. ALLAN, MOHAMMED ALLAN, and
SENECA SPECIALTY INSURANCE COMPANY

SECTION “N” (2)

ORDER AND REASONS
Presently before the Court is Plaintiff's January 21, 2016 "Rule 22(f) Motion to
Strike" (Rec. Doc. 66). Having carefully considered the parties' submissions, the record in this
matter, and applicable law, IT IS ORDERED that Plaintiff's motion is GRANTED to the extent
stated herein.
Plaintiff's motion asks the Court to strike Nos. 6-11 of Seneca's "Proposed
Conclusions of Law" (Rec. Doc. 63). More specifically, Plaintiff contends the insurance exclusions
identified therein should not be considered by the Court because they are "affirmative defenses of
which KKF was not put on notice until today [Wednesday, January 20, 2015]." Id. In making this
assertion, Plaintiff emphasizes that none of these exclusions appeared in Seneca's previously filed
Rule 12(b)(6) motion and, until yesterday (in response to the instant motion to strike), none were
pled in an answer.1 As such, Plaintiff did not seek previously seek responsive discovery and now,
given that trial begins on Monday, lacks sufficient time to do so.
"Exclusions from a policy of insurance have been held to be affirmative defenses
under Louisiana law." Williams v. Allstate Indem. Co., No. 07-6797, 2009 WL 723526, *3 (E.D.
La. 2009) (Feldman, J.) (citing Aunt Sally's Praline Shop, Inc. v. United Fire & Casualty Co., No.

1

See January 21, 2016 Answer (Rec. Doc. 73).

06–7674, 2008 WL 2517137, at *2 (E.D. La. June 20, 2008). "Rule 8(c) of the Federal Rules of
Civil Procedure requires affirmative defenses to be set forth in a defendant's responsive pleading;
failure to do so “'usually results in a waiver.'” Williams, 2009 WL 723526, at *2 (E.D. La.
2009)(Feldman, J.) (citing Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610
(5th Cir. 2007)). “Where the matter is raised in the trial court in a manner that does not result in
unfair surprise, however, technical failure to comply precisely with Rule 8(c) is not fatal.” Id.
Therefore, a defendant does not waive the defense if it is raised at a “pragmatically sufficient time
and the plaintiff was not prejudiced in its ability to respond.” Id. A defendant may not, however,
“‘lie behind a log’ and ambush a plaintiff with an unexpected defense.” Ingraham v. United States,
808 F.2d 1075, 1079 (5th Cir. 1987).
In this instance, Plaintiff did not name Seneca as a defendant (in its second amended
complaint) until after the January 25th trial date and pre-trial deadlines were set. Upon being named,
Seneca waived service and then filed a Rule 12(b)(6) motion to dismiss urging only the "Knowing
Violation of Rights of Another" exclusion. While that motion remained pending, Seneca, despite
the approaching discovery deadline and impending January trial date, failed to put Plaintiff on
notice of any other purportedly applicable policy exclusion by way of answer, motion, or,
seemingly, any other means. Nor, significantly, did Seneca ever seek a continuance of the trial date,
or any of the pre-trial deadlines, to allow more time for treatment of additional policy exclusions.
Rather, except for the "knowing violation exclusion" set forth in its motion to
dismiss, Seneca's first specification of any other allegedly applicable policy exclusion appeared only
in the parties' proposed pretrial order. See Rec. Doc. 65, pp. 11-12. Even there, however, the only
additional exclusion referenced is the "Material Published Prior To Policy Period" exclusion set
forth in Proposed Conclusion of Law No. 7.
2

Under these circumstances, Plaintiff will not be made to bear the burden for Seneca's
litigation strategy decisions. Accordingly, because Seneca did not provide Plaintiff adequate notice
of its assertion of particular policy exclusions, except the aforementioned "Knowing Violation of
Rights of Another" exclusion, in pragmatically sufficient time to allow for appropriate pretrial
discovery and, if warranted, motion practice, Nos. 6 - 11 of its Proposed Conclusions of Law are
deemed stricken to the extent that they will not be considered by the Court.
New Orleans, Louisiana, this 22nd day of January 2016.

KURT D. ENGELHARDT
United States District Judge

Clerk to Copy:
Magistrate Judge Wilkinson

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