United Fire & Casualty Company v. Titan Contractors Service, Inc.

Filing 115

MEMORANDUM AND ORDER -......IT IS HEREBY ORDERED that plaintiff United Fire & Casualty Company's Motion to Strike Defendant's Pleadings is GRANTED. [Doc. 113] IT IS FURTHER ORDERED that the defendant Titan Contractors Servi ce, Inc.'s Answer and Counterclaim is STRICKEN from the record. [Doc. 33] IT IS FURTHER ORDERED that the Clerk of Court shall mail a copy of this Memorandum and Order to defendant Titan Contractors Service, Inc., c/o Mark Melroy, P.O. Box 4193, Ballwin, Missouri 63021.. Signed by District Judge Charles A. Shaw on 10/7/2014. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
UNITED FIRE & CASUALTY COMPANY,
Plaintiff,
v.
TITAN CONTRACTORS SERVICE, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

No. 4:10-CV-2076 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff United Fire & Casualty Company’s (“United
Fire”) motion to strike defendant Titan Contractors Service, Inc.’s (“Titan”) pleadings. Titan has
not responded to the motion, and the time for doing so has passed. For the following reasons, the
Court will grant United Fire’s motion to strike.
I.

Background
In this declaratory judgment action, plaintiff United Fire sought a determination of its rights

and obligations under a policy of insurance issued to defendant Titan. Titan asserted a counterclaim
seeking a declaration that United Fire was obligated to defend and indemnify it for claims asserted
against it. Underlying this case is a personal injury action brought by three individuals against Titan
in Illinois state court arising out of their exposure to a chemical concrete sealant called TIAH
applied by Titan.
The parties filed cross motions for summary judgment. United Fire claimed it had no
contractual obligation to defend or indemnify Titan in the underlying lawsuit because the terms of
the policy exclude coverage for bodily injury arising out of the “discharge, dispersal, seepage,
migration, release or escape of ‘pollutants.’” The Court denied United Fire’s motion for summary

judgment, and granted Titan’s cross motion for summary judgment. The Court found the pollution
exclusion ambiguous as it related to Titan’s application of TIAH, and therefore found the exclusion
did not bar coverage for the underlying plaintiffs’ injuries.
United Fire appealed the summary judgment decision to the United States Court of Appeals
for the Eighth Circuit. The Eighth Circuit reversed the decision, but remanded the case to this Court
to decide whether the underlying complaint alleged the “discharge, dispersal, seepage, migration,
release or escape” of TIAH.
Shortly after remand, both trial and appellate counsel for Titan moved to withdraw their
appearances on the basis that Titan did not have the financial resources to continue to defend itself.
(Docs. 101, 102, and 104). On August 1, 2014, the Court held the motions to withdraw in abeyance,
and imposed a withdrawal notice period until September 2, 2014. (Doc. 107). The Court ordered
Titan to obtain substitute counsel no later than September 2, 2014. The Court cautioned Titan that
failure to obtain substitute counsel within that time may subject it to a default judgment in favor of
United Fire. (Id.).
Defendant did not obtain substitute counsel by September 2, 2014. The Court granted
defense counsel’s motions to withdraw. (Doc. 110). In response to the Court’s memorandum and
order of September 4, 2014 (id.), United Fire filed the instant motion to strike Titan’s pleadings.
II.

Discussion
Motions to strike are properly directed only to pleadings. 2 James W. Moore, et al., Moore’s

Federal Practice §12.37[2] (3rd ed. 2012). Motions to strike are not favored and are infrequently
granted, because they propose a drastic remedy. Stanbury Law Firm v. Internal Revenue Serv., 221

-2-

F.3d 1059, 1063 (8th Cir. 2000). Nonetheless, resolution of such a motion lies within the broad
discretion of the Court. Id.
A corporation is an artificial entity that can only act through agents, cannot appear pro se,
and must be represented by counsel. Rowland v. California Men’s Colony, 506 U.S. 194, 201-02
(1993). “Entry of a default judgment is appropriate where a defendant corporation fails to comply
with a court order to obtain counsel.” Woods v. KC Masterpiece, No. 4:04-CV-936 CAS, slip op.
at 1 (E.D. Mo. May 14, 2006) (quoting R. Maganlal & Co. v. M.G. Chem. Co., Inc., No. 88 CIV.
4896 MJL THK, 1996 WL 715526 at *2 (S.D.N.Y. Dec. 12, 1996)); see Top Sales, Inc. v. Designer
Vans, Inc., No. CIV.A. 3:96-CV-0721, 1997 WL 786254 at *2 (N.D. Tex. Dec. 11, 1997) (court
grants counsel’s motion to withdraw and orders defendant corporation to retain substitute counsel
or risk having its pleadings stricken and default judgment entered against it).
Based on the foregoing, the Court will strike Titan’s Answer and Counterclaim. Titan has
failed to comply with the Court’s memorandum and order of August 1, 2014, and based on its
inaction since early May 2014, it is apparent that Titan will not comply with the Court’s
memorandum and order in the future.
Accordingly,
IT IS HEREBY ORDERED that plaintiff United Fire & Casualty Company’s Motion to
Strike Defendant’s Pleadings is GRANTED. [Doc. 113]
IT IS FURTHER ORDERED that the defendant Titan Contractors Service, Inc.’s Answer
and Counterclaim is STRICKEN from the record. [Doc. 33]

-3-

IT IS FURTHER ORDERED that the Clerk of Court shall mail a copy of this
Memorandum and Order to defendant Titan Contractors Service, Inc., c/o Mark Melroy, P.O. Box
4193, Ballwin, Missouri 63021.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

7th

day of October, 2014.

-4-