Aaron et al v. Martin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that, to the extent it seeks tostrike affirmative defense D from plaintiff/counterclaim defendant Robert James Aaron, Jr.s Answer To Defendants Counterclaim, Defendants Motion For Judgment On The Pleadings, O r In The Alternative, Motion To Strike (Docket No. 66) is granted. IT IS FURTHER ORDERED that affirmative defense D isstricken from Robert James Aaron, Jr.s Answer To Defendants Counterclaim. granting 66 Motion for Judgment on the Pleadings Signed by Magistrate Judge Frederick R. Buckles on 2/7/13. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CONNIE MARIE AARON, et al.,
IVAN G. MARTIN,
Case No. 4:11CV1661 FRB
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion For
Judgment On The Pleadings, Or In The Alternative, Motion To Strike
All matters are pending before the undersigned United
States Magistrate Judge, with consent of the parties, pursuant to
28 U.S.C. § 636(c).
Plaintiffs Connie Marie Aaron and Robert James Aaron, Jr.
brought this action against Mr. Martin alleging personal injury
arising from an automobile accident that occurred on or about
September 28, 2006 on eastbound Interstate Highway 70 in Warren
Martin subsequently filed a two-count
Counterclaim against plaintiff Robert James Aaron, Jr., alleging
entitlement to contribution and indemnity due to negligence on the
part of Mr. Aaron.
identified by the parties as affirmative defense “D,” asserts the
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affirmative defense of waiver and estoppel, inasmuch as Mr. Martin
had “paid in full to Aaron the property damage resulting from the
collision, and therefore has waived any claim to contribution or
indemnification and is estopped from asserting same.”
52 at page 2).
The instant motion is directed solely to affirmative
Proceeding alternately under Rule 12(c) and (f), Mr.
Martin seeks judgment on the pleadings and alternately asks this
Court to strike affirmative defense D.
In support, Mr. Martin
argues that affirmative defense D is not legally sufficient to bar
or prevent the Counterclaim because, under both R.S.Mo. 490.710 and
Fed.R.Evid. 408, evidence of a prior or partial settlement or
payment of a claim is not admissible into evidence to establish
In response, Mr. Aaron argues that Mr. Martin has not
resulting from the collision, and also argues that Mr. Martin’s
motion is premature.
Mr. Aaron relies upon Mathis v. Jones Store
Co., 952 S.W.2d 360 (Mo. Ct. App. 1997) and Keith v. Burlington
Northern R. Co., 889 S.W.2d 911, 925 (Mo. Ct. App. 1994) for the
proposition that the purpose of § 490.710 is to prevent a double
recovery from one loss, and that the party seeking to prevent
double recovery must establish that the payment made was predicated
on possible tort liability.
Mr. Aaron notes that the payment was
for property damage and the case at bar concerns personal injury,
and argues that there is no evidence that Mr. Martin’s payment was
predicated on possible tort liability as required by § 490.710
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R.S.Mo., and that it remains to be discovered what Mr. Martin’s
intent was when he made the payment.
Mr. Aaron also argues that
the reasonable inference to be drawn from Mr. Martin’s payment is
that “Martin, in paying [Mr. Aaron] in full for his property
damage, intentionally waived his right to assert that Plaintiff was
in any way at fault or contributed to the accident.”
(Id. at 5).
Mr. Aaron also argues that “[i]n this case the purpose of the
payment for 100% of the property damage could arguably illustrate
100% fault for the accident at issue.”
(Id. at 2).
The Federal Rules of Civil Procedure provide two ways for
a party to challenge the sufficiency of an affirmative defense: a
motion for judgment on the pleadings under Rule 12(c), or a motion
to strike under Rule 12(f).
Rule 12(f) is “the primary procedure
for objecting to an insufficient defense.”
Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure Civ. § 1380 (3d
Under Rule 12(f), the Court may (inter alia) strike an
insufficient defense from a pleading, and may do so upon a party’s
timely motion or upon its own initiative.
Although technically untimely under Rule 12(f)(2), the
instant motion is well-taken.
The authority given the court by [Rule
12(f)(1)] to strike an insufficient defense on
its own initiative at any time has been
interpreted to allow the district court to
consider untimely motions to strike and to
grant them if doing so seems proper.
judicial discretion is appropriate since in
many instances a motion to strike redundant,
impertinent, immaterial, or scandalous matter
is designed to eliminate allegations from the
pleadings that might cause prejudice at some
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later point in the litigation.
Id.; see also Lunsford v. U.S., 570 F.2d 221, 227 n.11
(8th Cir. 1977) (noting that even though the motion to strike
certain affirmative defenses was not made within the time limits
established by Fed.R.Civ.P. 12(f), the District Court had the
authority to consider the motion and to strike material from the
pleadings on its own initiative); Wine Markets Intern., Inc. v.
Bass, 177 F.R.D. 128, 133 (E.D.N.Y. 1998) (considering a motion to
strike that was untimely filed and explaining that the court “is
clearly given the authority, at any time, to consider a motion to
strike even if made” outside the time provided by Rule 12(f)).
When ruling a motion to strike, “the Court must ‘view the
pleadings in the light most favorable to the pleader.’” Morgan v.
Midwest Neurosurgeons, LLC, 2011 WL 2728334 at *2 (quoting Cynergy
Ergonomics, Inc. v. Ergonomic Partners, Inc., 2008 WL 2817106, at
*2 (E.D. Mo. July 21, 2008)).
An affirmative defense should not be
stricken “unless, as a matter of law, the defense cannot succeed
essential or important relationship to the claim for relief.”
(internal quotation marks and citations omitted); see also Lunsford
v. U.S., 570 F.2d 221, 229 (C.A.S.D. 1977) (motion to strike a
defense will be denied if defense is sufficient as a matter of law
or fairly presents a question of law or fact which the court ought
In addition, the party seeking to strike must show that
it is prejudiced by the inclusion of the affirmative defense or
that the defense's inclusion confuses the issues.
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Morgan, 2011 WL
2728334, at *2.
“If there is any doubt whether the matter may
Southwestern Bell Telephone, L.P. v. Missouri Public Service Com’n,
461 F.Supp.2d 1055, 1064 (E.D. Mo. 2006).
With the foregoing standards in mind, having considered
the instant motion, the undersigned concludes that affirmative
defense D cannot succeed under any circumstances, and that Mr.
Martin has successfully demonstrated that he would be prejudiced
should Mr. Aaron be allowed to proceed with affirmative defense D.
In affirmative defense D, Mr. Aaron seeks to introduce evidence
that Mr. Martin made a payment to Mr. Aaron stemming from the
collision, and by virtue thereof established his liability for the
collision and waived his right to/is estopped from claiming that
Mr. Aaron bore any liability for the collision.
In his response to
the instant motion, Mr. Aaron argues that Mr. Martin’s payment
could illustrate 100% fault for the accident at issue.
As Mr. Martin correctly states, federal and Missouri
state law provide that evidence of a prior or partial settlement or
payment of a claim is not admissible to establish liability.
R. Evid. 408; R.S. Mo. § 490.710; Weems v. Tyson Foods, Inc., 665
F.3d 958, 967 (8th Cir. 2011); Taylor v. Yellow Cab Co., 548 S.W.2d
528 (Mo. 1977).
While Mr. Aaron relies upon Mathis and Keith,
those decisions are irrelevant to the issue raised by the instant
In both Mathis and Keith, the Missouri Court of Appeals
addressed whether § 490.710(2) was intended to prevent a double
recovery by allowing a payment described in § 490.710(1) to be
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prohibited the admission of evidence of a payment of damages to
Mathis, 952 S.W.2d at 368-69; Keith, 889
S.W.2d at 925. As Mr. Martin correctly notes, the Missouri Supreme
Court has observed that § 490.710 disallows the introduction of
evidence of payments to establish liability in order to remove the
concern “about making a partial payment without extinguishing the
The concern was that if the claim was not finally settled
and suit was filed the Plaintiff might be allowed to put the
partial payment in evidence before the jury and thereby cause the
jury to think that the Defendant must have been at fault since
otherwise he would not have paid anything at all prior to suit.”
Taylor v. Yellow Cab Co., 548 S.W.2d 528, 532-33 (Mo. 1977).
In addition, as Mr. Martin notes, federal law provides
that “furnishing, promising, or offering -- or accepting, promising
to accept, or offering to accept -- a valuable consideration in
admissible by any party to “prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction.”
Fed.R.Evid. 408(a)(1); see also
Weems v. Tyson Foods, Inc., 665 F.3d 958, 967 (8th Cir. 2011).
Rule 408 only prohibits admitting compromise evidence relating to
a claim that was disputed when the settlement negotiations or offer
to compromise took place.
Weems, 665 F.3d at 967 (citing Crues v.
KFC Corp., 768 F.2d 230, 233 (8th Cir. 1985)).
In response to the
instant motion, Mr. Aaron does not address Rule 408, much less
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argue that Mr. Martin’s payment was unrelated to the disputed
claim, nor does it seem apparent from the record that Mr. Martin’s
payment was anything other than related to the disputed claim.
(internal citations omitted).
As Mr. Martin argues, the payment
was made to resolve or satisfy a claim for damages stemming from
The undersigned has no difficulty concluding that
Mr. Aaron’s claim against Mr. Martin was in dispute when Mr. Martin
made the payment.
Nor can there be any question as to the reason Mr. Aaron
seeks to admit evidence of Mr. Martin’s payment.
While Rule 408
allows the admission of such evidence for purposes other than to
prejudice, negating a contention of undue delay, or proving an
Fed.R.Evid. 408(b), Mr. Aaron does not argue, nor does it seem
apparent, that any of those exceptions apply here.
Based upon the
language of affirmative defense D and Mr. Aaron’s arguments in
opposition to the instant motion, Mr. Aaron seeks to use Mr.
Martin’s payment as evidence of Mr. Martin’s liability for the
collision at issue.
Mr. Martin has demonstrated that he would
evidence of his liability for the collision. The undersigned is
convinced that there are no questions of fact, and that all
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questions of law are clear and that affirmative defense D cannot
succeed under any circumstances.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that, to the extent it seeks to
strike affirmative defense D from plaintiff/counterclaim defendant
Robert James Aaron, Jr.’s Answer To Defendant’s Counterclaim,
Alternative, Motion To Strike (Docket No. 66) is granted.
IT IS FURTHER ORDERED that affirmative defense D is
stricken from Robert James Aaron, Jr.’s Answer To Defendant’s
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 7th day of February, 2013.
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