Mears v. Jones et al
ORDER denying 37 Motion to Strike ; denying 39 Motion to Strike ; denying 44 Motion to Strike Signed by District Judge Keith Starrett on 4/25/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 1:17-CV-6-KS-MTP
LANCE FAGAN JONES, et al.
MEMORANDUM OPINION AND ORDER
This is a property insurance case arising from the alleged failure to procure
sufficient coverage. Plaintiff filed two Motions to Strike [37, 39, 44] certain defenses
asserted by Defendants. For the reasons below, the Court denies the motions.
I. STANDARD OF REVIEW
A plaintiff seeking to challenge the legal sufficiency of a defense may move to
strike it under Rule 12(f). C&C Inv. Props., LLC v. Trustmark Nat’l Bank, 838 F.3d
655, 660-61 (5th Cir. 2016). The rule provides: “The court may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter. The court may act . . . on motion made by a party either before responding to
the pleading, or, if a response is not allowed, within 21 days after being served with the
pleading.” FED. R. CIV. P. 12(f). “A disputed question of fact cannot be decided on
motion to strike.” Augustus v. Bd. of Public Instruction, 306 F.2d 862, 868 (5th Cir.
1962). Likewise, “when there is no showing of prejudicial harm to the moving party,
courts are generally not willing to determine disputed and substantial questions of law
upon a motion to strike. Under such circumstances, the court may properly, and we
think should, defer action on the motion and leave the sufficiency of the allegations for
a determination on the merits.” Id.
II. MOTION TO STRIKE CONSTITUTIONAL DEFENSES 
First, Plaintiff argues that the Court should strike Defendants’ challenge to the
constitutionality of Mississippi’s punitive damages statute. For the following reasons,
the motion should be denied.
First, the motion was untimely. Rule 12(f) unambiguously provides that a
motion to strike a defense from a pleading to which no response is permitted must be
filed within twenty-one days of service of the pleading. FED. R. CIV. P. 12(f). Defendants
filed their Answer  on February 7, 2017, but Plaintiff did not file the Motion to
Strike  until April 6, 2017 – almost two months later. This is sufficient reason to
deny the motion. See Conn v. United States, 823 F. Supp. 2d 441, 446 (S.D. Miss. 2011);
United States ex rel. TVA v. An Easement & Right-Of-Way Over 3.28 Acres of Land, No.
1:15-CV-19-GHD-DAS, 2017 U.S. Dist. LEXIS 33623, at *6 (N.D. Miss. Mar. 6, 2017).
Second, Plaintiff has not demonstrated that he would be prejudiced by leaving
the sufficiency of the defense for a later determination, and without such a showing,
the Court “should . . . defer action on the motion and leave the sufficiency of the
allegations for a determination on the merits.” Augustus, 306 F.2d at 868; see also
Conn, 823 F. Supp. 2d at 446-47. Therefore, the Court can always address this issue
later in the case, if it becomes necessary to do so.
For these reasons, the Court denies Plaintiff’s Motion to Strike  Defendants’
constitutional defense to Plaintiff’s claim for punitive damages, without prejudice to
Plaintiff’s right to assert the same argument later, if a punitive damages instruction
is given and Defendants raise this defense.
III. MOTION TO STRIKE DEFENSES [39, 44]
Next, Plaintiff argues that the Court should strike Defendants’ second, fourth,
fifth, and sixth defenses on the grounds that they are immaterial, vague, and
indefinite. For the same reasons provided above, the Court finds that the motion is
untimely, and, therefore, it should be denied. See FED. R. CIV. P. 12(f); Conn, 823 F.
Supp. 2d at 446; TVA, 2017 U.S. Dist. LEXIS 33623 at *6.
For these reasons, the Court denies Plaintiff’s Motions to Strike [37, 39, 44].
Additionally, this Court has repeatedly warned litigants against a using “shotgun
approach to pleadings,” in which one “heedlessly throws a little bit of everything into
his [pleading] in the hopes that something will stick.” S. Leasing Partners, Ltd. v.
McMullen, 801 F.2d 783, 788 (5th Cir. 1986).1 In fact, the Court recently sanctioned an
attorney for vexatiously multiplying proceedings with shotgun pleading and
argumentation. See Payne v. Univ. of S. Miss., No. 1:12-CV-41-KS-MTP, 2015 U.S.
See, e.g. Newberry v. Champion, No. 3:16-CV-143-DMP-RP, 2017 U.S. Dist.
LEXIS 38729, at *4-*5 (S.D. Miss. Mar. 17, 2017); Copeland v. Axio Mortg. Group
LLC, No. 1:16-CV-159-HSO-JCG, 2016 U.S. Dist. LEXIS 106249, at *10-*14 (S.D.
Miss. Aug. 11, 2016); Ducksworth, 2015 U.S. Dist. LEXIS 20563 at *14-*16; Payne
v. Univ. of S. Miss., No. 1:12-CV-41-KS-MTP, 2014 U.S. Dist. LEXIS 22052, at *5 n.
3 (S.D. Miss. Feb. 21, 2014); Ward v. Life Investors Ins. Co. of Am., 383 F. Supp. 2d
882, 889 (S.D. Miss. 2005); Austin v. Bayer Pharms. Corp., No. 5:13-CV-28-KS-MTP,
2013 U.S. Dist. LEXIS 137480, at *5 n. 1 (S.D. Miss. Sept. 25, 2013); BC’s Heating
& Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., No. 2:11-CV-136-KS-MTP,
2012 U.S. Dist. LEXIS 24420, at *27 (S.D. Miss. Feb. 27, 2012).
Dist. LEXIS 42118, at *9-*15 (S.D. Miss. Mar. 31, 2015), aff’d 2017 U.S. App. LEXIS
4495 (5th Cir. Mar. 14, 2017).
The Eleventh Circuit astutely described the problems that “shotgun pleading”
If the trial judge does not quickly demand repleader, all is lost – extended
and aimless discovery will commence, and the trial court will soon be
drowned in an uncharted sea of depositions, interrogatories, and
affidavits. Given the massive record and loose pleadings before it, the
trial court, whose time is constrained by the press of other business, is
unable to squeeze the case down to its essentials; the case therefore
proceeds to trial without proper delineation of issues, as happens
frequently. An appeal ensues, and the court of appeals assumes the trial
court’s responsibility of sorting things out. The result is a massive waste
of judicial and private resources; moreover, the litigants suffer, and
society loses confidence in the courts’ ability to administer justice.
Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1333 (11th Cir.
1998) (punctuation, internal citations omitted). The Fifth Circuit has observed that
“shotgun pleading” of this sort treads dangerously close to Rule 11 territory.
McMullan, 801 F.2d at 788 (“If Rule 11 is to mean anything and we think it does, it
must mean an end to such expeditionary pleadings.”); see also Paylor v. Hartford Fire
Ins. Co., 748 F.3d 1117, 1125-28 (11th Cir. 2014) (decrying shotgun pleading and the
“discovery goat rodeo” that inevitably follows it).
If the answers typically filed in this Court are any indication, virtually every
defendant in Mississippi litigation believes they have numerous meritorious defenses,
such as “laches,” “accord and satisfaction,” or “unclean hands,” without any reference
to the facts of the case. Defendants’ Answer  is not, by any means, the worst the
Court has seen. Nevertheless, it contains some boilerplate filler, as noted by Plaintiff
in briefing. “Shotgun” pleading clouds the legal and factual issues in a case. At best,
it indicates an attorney’s failure to fully analyze the case and adopt a coherent defense
or theory of liability. At worst, it constitutes intentional obfuscation. Regardless of the
attorney’s motivation, it escalates the cost of litigation for both the parties and the
Court, expanding the scope of discovery to pinpoint the specific issues for trial – a task
that Rule 11 requires attorneys to perform, to some degree, before they file a pleading.
See FED. R. CIV. P. 11(b)(2). These principles apply to defendants as stringently as they
apply to plaintiffs. See, e.g. Woodfield v. Bowman, 193 F.3d 354, 361 (5th Cir. 1999)
(“An affirmative defense is subject to the same pleading requirements as is the
complaint.”). The Court advises Defendants’ counsel to be mindful of this admonition
in the future.
SO ORDERED AND ADJUDGED this
day of April, 2017.
UNITED STATES DISTRICT JUDGE
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