Avila Monroy et al v. Hendrix et al

Filing 21

ORDER AND REASONS: IT IS ORDERED that the 19 motion to strike is DENIED WITHOUT PREJUDICE, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/26/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELIAZAR AVILA MONROY, ET AL.

CIVIL ACTION

VERSUS

NO. 17-9256

ALEXANDER HENDRIX, ET AL.

SECTION “B”(5)

ORDER AND REASONS
Plaintiffs’ motion to strike Defendant Alexander Hendrix’s
Answer (Rec. Doc. 15) is before the Court. Rec. Doc. 19. No
opposition has been filed. For the reasons discussed below,
IT IS ORDERED that the motion to strike (Rec. Doc. 19) is
DENIED WITHOUT PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 31, 2017, plaintiff Eliazar Avila Monroy (Avila) was
riding in a truck being driven by Defendant Alexander Hendrix when
the truck was involved in a head-on collision. See Rec. Doc. 1 ¶¶
5-6. The Public Safety Officer who responded to the scene found
that Hendrix was at fault and issued him a citation for careless
operation of a vehicle. See id. ¶ 7. Avila was transported to
University Medical Center by helicopter to be treated for various
injuries, including hip and leg injuries that required surgery.
See id. ¶ 9.
On September 18, 2017, Avila and his wife, Daniela Espinoza,
filed suit against Hendrix, as well as ACH Concrete and ACH Lawn
(two entities owned by Hendrix that employed Avila at the time of

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the accident). See id. ¶¶ 8, 11-13. Plaintiffs also sued various
insurance

companies.

See

id.

¶ 14.

Plaintiffs

allege

that

Hendrix’s negligence while driving caused Avila’s injuries, see
id. ¶ 8, that Hendrix’s companies are liable under theories of
respondeat superior and negligent supervision, see id. ¶¶ 12-13,
and that Espinoza is entitled to damages for loss of consortium,
see id. ¶ 10.
Defendant Hendrix was served on October 3, 2017, and his
answer was due on October 24, 2017. See Rec. Doc. 10. Defendants
ACH Lawn and ACH Concrete were served on October 4, 2017, and their
answers were due on October 25, 2017. See Rec. Docs. 8-9. There is
no evidence that the insurance companies were ever served. By
January 2018 no defendant had filed responsive pleadings and no
plaintiff had moved for entry of default. Therefore, the Court
issued an order to show cause why the case should not be dismissed
for failure to prosecute. See Rec. Doc. 12. The next day, on
January 11, 2018, Plaintiffs filed a motion for entry of default
against all Defendants who had been served. See Rec. Doc. 13. The
Clerk of Court entered default as to Hendrix, ACH Lawn, and ACH
Concrete on January 12, 2018. See Rec. Doc. 14.
On February 5, 2018, Hendrix filed an answer. See Rec. Doc.
15. The Clerk of Court then noticed a scheduling conference for
March 8, 2018. See Rec. Doc. 18. On February 23, 2018, Plaintiffs
filed the instant motion to strike Hendrix’s answer as untimely.
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See Rec. Doc. 19. Any opposition was due no later than March 6,
2018, but none has been filed. However, on March 8, 2018, counsel
for

Plaintiffs

and

Hendrix

participated

in

the

scheduling

conference and set a date for trial in January 2019. See Rec. Doc.
20.
LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 12(f), a party may move
to strike “an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Granting a motion to strike
“is a drastic remedy to be resorted to only when required for the
purposes of justice.” Augustus v. Bd. of Pub. Instruction, 306
F.2d 862, 868 (5th Cir. 1962). As a result, a “motion to strike
should be granted only when the pleading to be stricken has no
possible relation to the controversy.” Id. Plaintiffs have not met
their heavy burden at this time because the parties recently
participated in a scheduling conference to set dates for trial,
which indicates that Hendrix’s answer is in fact highly “relat[ed]
to the controversy.” Striking Hendrix’s answer from the record for
the mere fact that it was untimely will only serve to further delay
the instant proceedings.
As Plaintiffs point out in their motion, Hendrix’s answer
does not change the fact that the Clerk of Court previously entered
default as to Hendrix. See Directv, Inc. v. Young, 195 F. App’x
212, 215 (5th Cir. 2006); Cotter v. Gwyn, No. 15-4823, 2016 WL
3

4479510, at *15 (E.D. La. Aug. 25, 2016). But Plaintiffs have not
yet moved for an entry of default judgment, even though default
was entered two months ago. Instead, Plaintiffs scheduled a trial
date. These facts set the instant motion apart from the situation
presented in Directv, where the plaintiff sought to strike the
defendant’s

untimely

answer

after

first

moving

for

default

judgment. See 195 F. App’x at 215. Moreover, in Directv, the court
granted the motion to strike at the same time that it entered
default judgment against Defendant. See id. Because Plaintiffs
have not yet moved for entry of a default judgment against Hendrix,
the instant motion to strike is distinguishable from the motion
discussed in Directv.
That being said, Hendrix’s repeated failures to adhere to the
deadlines imposed by the Federal Rules of Civil Procedure, Local
Rules, and Court Orders is concerning. The parties are reminded
that

failure

to

comply

with

such

deadlines

are

grounds

for

sanctions. See Fed. R. Civ. P. 1, 16(f), 41(b).

New Orleans, La. this 26th day of March 2018

_____________________________
Senior U. S. District Judge

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