Britt v. Mississippi Farm Bureau Casualty Insurance Company et al

Filing 82

ORDER granting 48 Motion for Leave to File; denying 77 Motion to Strike. Signed by Magistrate Judge David A. Sanders on 7/17/18. (def)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MEGAN BRITT

PLAINTIFF

V.

CIVIL ACTION NO. 1:17-CV-219-NBB-DAS

MISSISSIPPI FARM BUREAU
CASUALTY INSURANCE CO.,
SOUTHERN FARM BUREAU
LIFE INSURANCE CO., et al.

DEFENDANTS

ORDER DENYING MOTION TO STRIKE
AND GRANTING MOTION FOR LEAVE TO AMEND
Megan Britt has sued Mississippi Farm Bureau Casualty Insurance Company and
Southern Farm Bureau Life Insurance Company asserting Title VII claims for sex discrimination
and retaliation, a state law McArn claim relating to the sale of life insurance, and alternatively a
claim against these defendants alleging the breach of the obligation of good faith and fair
dealing. These defendants have both filed motions to dismiss under Rule 12(b)(6) asserting that
the plaintiff has failed to state a claim against them. The plaintiff admittedly did not name
Southern Farm Bureau as her employer in her EEOC complaint and that defendant also seeks
dismissal for the failure to exhaust administrative remedies.
As part of her response to the motion to dismiss, the plaintiff has filed a motion for leave
to file her second amended complaint. These two defendants oppose the grant of leave to amend,
arguing that the proposed amended complaint is still subject to dismissal and therefore futile.
The plaintiff filed her reply in support of her motion to amend and Mississippi Farm Bureau
moved to strike three portions of that reply. Because of its potential impact on the decision on
the underlying motion to amend, the court first addresses the motion to strike.

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MOTION TO STRIKE
Mississippi Farm Bureau seeks to have the court strike three matters from the plaintiff’s reply:
1. The plaintiff’s response to its futility argument regarding the plaintiff’s McArn claim,
asserting that it is not licensed to sell life insurance in Mississippi and therefore can have no
liability on this claim because it relates to the sale of life insurance.
2. Any reference to Barry Patton being an employee of Mississippi Farm Bureau,
asserting that he is actually employed by a non-party, Southern Farm Bureau Casualty.
3. The third footnote in the plaintiff’s reply which asserts there is a “revealing
typographical error” in the defendant’s brief.
For a variety of reasons, the court finds that the motion should be denied.
Rule 12(f) provides: “The court may strike from pleading … any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). This defendant claims certain factual
matters asserted by the plaintiff are known by her or should be known by her to be false.
Pleadings are limited to the complaint, an answer to a complaint, an answer to a counterclaim or
crossclaim, a third-party to a complaint; and if allowed by the court a reply to an answer.
Fed.R.Civ.P. 7(a). The plaintiff’s reply in support of the motion to amend is not a pleading
within the definition of Rule 7. Rule 12(f) therefore does not apply to the reply. U.S. v. Coney,
689 F. 3d 365, 380 (5th Cir. 2012).
Furthermore, motions to strike are not favored --they constitute a drastic remedy and are
difficult to decide on a limited record. Conn v U.S., 823 F. Supp. 2d 441, 443-44 (S.D. Miss.
2011); U.S. ex rel. King v. Solvay, S.A., 304 F.R.D. 507 (S.D.Tex. 2015). Additionally, the
defendant is attempting to impose some type of summary fact finding procedure as a prerequisite
to granting to the motion to amend. Any attempt to attack the plaintiff’s complaint based on an

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assertion that it includes erroneous or false factual allegations would be through summary
judgment, not by means of a motion to strike. Hagy v. Am. Honda Motor Co., 125 F. Supp. 2d
456 (W. D. Okla. 2000).
Mississippi Farm Bureau suggests that the court can resolve its motion to strike by taking
judicial notice of its licensing with the State of Mississippi, in connection with the plaintiff’s
McArn claim. It also suggests that the court take judicial notice that Barry Patton is not an
employee of Mississippi Farm Bureau based on his representation in filings in this action that he
is employed by Southern Farm Bureau Casualty, who is not a party to this action. To the extent
that judicial notice may be appropriate to the motion to dismiss, the request should be addressed
to the district judge in connection with that motion.
Mississippi Farm Bureau has taken umbrage at comments about a “revealing
typographic” error in the defendant’s briefing. Even if this document were a pleading, pleadings
are not scandalous merely because they may offend the sensibilities of a party or their counsel, if
relevant to the issue in controversy and minimally support by the record. In re Gitto Global
Corp., 422 F. 3d 112 (1st Cir. 2005).
Accordingly, the motion to strike should be denied.
MOTION TO AMEND
In deciding whether to grant the motion to amend the court must recognize that motions
to amend are liberally granted. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th
Cir.1981); Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1163 (5th
Cir.1982) (“district court[s] should err on the side of allowing amendment”). However, the
court may in its discretion deny a motion to amend if it is futile, with futility determined under
‘the same standard of legal sufficiency as applies under Rule 12(b)(6).’ Stripling v. Jordan Prod.

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Co., 234 F.3d 863, 873 (5th Cir.2000) (quoting Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir.2000); Gen. Elec. Cap. Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir.1997);
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996).
It appears to this court that the proposed amended complaint has at least arguably cured
some of the defects pointed out in the two pending motions to dismiss and may well change the
decision on those motions. Even if the proposed amendment may not completely defeat the
motions, the court does not find that the amendment is futile. Additionally, given that the courts
typically do not dismiss complaints with prejudice absent an incurable defect in the pleadings or
the failure to correct the pleadings after “repeated opportunities,” Hart v. Bayer, 199 F.3d 239,
247 n. 6 (5th Cir. 2000), the court finds that allowance of the proposed amendment at this
juncture may expedite resolution of the motions to dismiss.
IT IS, THEREFORE, ORDERED as follows:
1. The motion of Mississippi Farm Bureau to strike portions of the plaintiff’s reply in
support of her motion to amend is denied.
2. The plaintiff’s motion to amend is granted. The amended complaint shall be filed
within seven days of this order.
SO ORDERED this the 13th day of July, 2018.

/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE

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