Mark Andy, Inc. v. Cartonmaster International (2012), Inc. a/k/a Scantech Automation, Inc. et al

Filing 32

MEMORANDUM AND ORDER re: 12 Joint MOTION to Strike 1 Complaint, Pursuant to Rule 12(f)(2) filed by Cartonmaster International (2012), Inc., Allan Prittie motion is DENIED.. Signed by Magistrate Judge Shirley P. Mensah on 12/12/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK ANDY, INC.
Plaintiff,
v.

CARTONMASTER INTERNATIONAL
(2012), INC., a/k/a SCANTECH, et al.,
Defendants/Counterclaim Plaintiffs.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 4:14-CV-986-SPM

MEMORANDUM AND ORDER
This case is before the Court on the Joint Motion to Strike Portions of Plaintiff’s
Complaint Pursuant to Rule 12(f)(2) filed by Defendants/Counterclaim Plaintiffs Cartonmaster
International (2012), Inc., aka Scantech, and Allan Prittie (collectively, “Defendants”). (Doc.
12). For the reasons stated below, the motion will be denied.
I.

BACKGROUND
Plaintiff Mark Andy, Inc. (“Plaintiff”) filed a lawsuit against Defendants alleging breach

of contract, fraudulent inducement, unjust enrichment, and fraud. Defendants move to strike two
portions of Plaintiff’s complaint: (1) the “Introduction” section, in which Plaintiff sets out some
of the facts related to its allegations in paragraph form; and (2) the section of the Prayer for
Relief seeking “Pre-judgment interest on [the amount of damages determined at trial] as allowed
by law.”

1

II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) provides, “The court may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” either on
its own or on a motion made by a party. Although courts enjoy “broad discretion” in determining
whether to strike a party’s pleadings, motions to strike are “viewed with disfavor and are
infrequently granted.” Stanbury Law Firm v. Internal Revenue Serv., 221 F.3d 1059, 1063 (8th
Cir. 2000) (internal quotation marks omitted). A motion to strike generally “should be denied
unless the challenged allegations have no possible relation or logical connection to the subject
matter of the controversy and may cause some form of significant prejudice to one or more of the
parties to the action.” 5C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. §
1382 (3d ed.); see also World Wide Stationary Mfg. Co., Ltd. v. U.S. Ring Binder, L.P., No. 4:07CV-1947, 2009 WL 1684702, at *3 (E.D. Mo. June 16, 2009) (“There is general judicial
agreement that motions to strike should be denied ‘unless the challenged allegations have no
possible relation or logical connection to the subject matter of the controversy and may cause
some form of significant prejudice to one or more of the parties to the action.’”) (quoting 5C
Fed. Prac. & Proc. § 1382); Brown v. Davis, No. 4:12-CV-649 AGF, 2012 WL 3578730, at *2
(E.D. Mo. Aug. 20, 2012) (“[E]ven where allegations are redundant or immaterial, they should
be stricken only if prejudicial to the moving party.”) (quotation marks omitted).
III.

DISCUSSION
a. Timeliness of the Motion
Plaintiff argues that Defendants’ motion should be denied because it is untimely. A

motion to strike a pleading may be filed “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.

2

12(f)(2). Here, Defendants’ motion is technically untimely because it was filed after the answer
was filed. However, because the two documents were filed on the same day, and because the
Court has the power under Rule 12(f) to act “on its own” at any time, the Court finds it
appropriate to consider the merits of Defendants’ motion.
b. The “Introduction” Section of the Complaint
Defendants first argue that the “Introduction” section of the complaint should be stricken
because it is excess verbiage that is set out in allegations made later in enumerated allegations.
They also argue that this material is “nothing more than immaterial, impertinent, and scandalous
argument.” (Doc. 12, at ¶ 3).
After reviewing the Introduction and the entire complaint in light of the applicable legal
standards, the Court finds no basis on which to strike the Introduction. The Introduction simply
provides a brief narrative overview of Plaintiff’s factual allegations, and Defendants do not
explain how it is immaterial, impertinent, scandalous, or argumentative. Defendants also do not
articulate any way in which they would be prejudiced if the Introduction were kept in the
Complaint. At most, the Introduction is redundant, because it includes some facts that are
addressed later in enumerated paragraphs. However, the Court does not find that this redundancy
alone warrants striking the Introduction in the absence of some prejudice to Defendants. See 5C
Fed. Prac. & Proc. Civ. § 1382 (3d ed.). (“The mere presence of redundant matter . . . may not be
a sufficient ground for granting a motion to strike when it does not affect the substance of the
pleading.”); Brown, 2012 WL 3578730, at *2 (“[E]ven where allegations are redundant or
immaterial, they should be stricken only if prejudicial to the moving party.”).

3

c. Prayer for Prejudgment Interest
Defendants also argue that the sections of Plaintiff’s prayer for relief seeking prejudgment interest should be stricken as “immaterial” because Plaintiff has failed to set forth a
proper basis for such relief under the applicable law. Specifically, Defendants point out that the
Missouri statute allowing prejudgment interest in tort actions, Mo. Rev. Stat. § 408.040.2,
provides that prejudgment interest shall be awarded if the claimant has made a demand for
payment of a claim or an offer of settlement of a claim, the amount of the judgment or order
exceeds that demand, and the demand meets certain procedural requirements (such as having
been sent by certified mail, return receipt requested). Defendants argue that because Plaintiff did
not plead facts showing that it complied with the requirements of this statute, Plaintiff’s prayer
for prejudgment interest should be stricken as to all four counts of the complaint.
The Court acknowledges that “a prayer for relief not available under the applicable law,
or which asserts a damage claim in excess of the maximum recovery permitted by law, is
properly subject to a motion to strike.” Spinks v. City of St. Louis Water Div., 176 F.R.D. 572,
574 (E.D. Mo. 1997) (striking a claim for punitive damages against a municipality because such
damages were not permitted by law). However, Defendants do not argue that prejudgment
interest is unavailable under the law applicable to Plaintiff’s claims. Instead, they assert that the
prayer for relief should be stricken because Plaintiff has failed to plead the specific facts that
would establish that such interest is available under Section 408.040.2. The Court disagrees.
First, Section 408.040.2 applies only to tort claims, and Defendants offer no authority for
striking the prayer for relief as it relates to Plaintiff’s breach of contract claim. Indeed, the parties
appear to agree that the breach of contract claim is governed by New York law pursuant to a
choice of law provision in the contract, yet Defendants have cited no case law or statutes

4

addressing the availability of prejudgment interest under New York law. Thus, the motion to
strike will be denied as it relates to the breach of contract claim.
Second, even as to the three claims that are arguably subject to Section 408.040.2, 1
Defendants cite no authority that supports striking a prayer for prejudgment interest based on a
failure to plead the requirements of that statute. Significantly, both this court and the Missouri
Supreme Court have held that Section 408.040.2 does not impose specific pleading requirements
on plaintiffs. In Gibson v. Musil, this court held that prejudgment interest could be awarded
under Section 408.040.2 even where the plaintiffs “did not plead facts relating to prejudgment
interest in their Complaint” and included only a general prayer “for all other losses, damages,
injuries, and relief allowable under the law and as the Court shall deem necessary and proper
under the circumstances.” 844 F.Supp. 1579, 1582 (W.D. Mo. 1994). Similarly, in Call v. Heard,
the Missouri Supreme Court held that § 408.040 “contains no pleading requirement” and that a
petition seeking damages and “such other and further relief as this court deems just and proper
under the circumstances” provides a sufficient basis for an award of prejudgment interest. 925
S.W.2d 840, 854 (Mo. 1996).
Given the cases finding that prejudgment interest may be awarded even when facts
related to prejudgment interest have not been pleaded, combined with the absence of authority
supporting granting a motion to strike in circumstances like those here, the Court finds that
Defendants’ motion to strike the prayer for prejudgment interest should be denied.

1

For purposes of this motion, the Court will assume, without deciding, that Missouri law applies
to determine the availability of prejudgment interest related to the unjust enrichment, fraudulent
inducement, and fraud claims.
5

For all of the above reasons,
IT IS HEREBY ORDERED that Defendants’ Joint Motion to Strike Portions of Plaintiff’s

Complaint Pursuant to Rule 12(f)(2) (Doc. 12) is DENIED.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated: December 12, 2014.

6