Le v. Sentinel Insurance Company, LTD, The Hartford
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiff's motion to strike Defendant's affirmative defenses is DENIED. ECF No. 13 . Signed by District Judge Audrey G. Fleissig on 4/5/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
KIET LE, doing business as PLAZA,
SENTINEL INSURANCE CO., LTD
No. 4:17CV00018 AGF
MEMORANDUM AND ORDER
This matter is before the Court on the motion of Plaintiff Kiet Le to strike,
pursuant to Federal Rule of Civil Procedure 12(f), affirmative defenses filed by
Defendant Sentinel Insurance Company, Ltd. For the reasons set forth below, this motion
will be denied.
In the complaint, Plaintiff alleges that on May 20, 2014, Defendant issued an
insurance policy to Plaintiff, which was in force on June 25, 2014, when Plaintiff’s real
property sustained water damage to the roof and damage to the building. Plaintiff
contends that he made a claim under the policy, and on April 28, 2015, Defendant denied
the claim. Plaintiff seeks damages under Missouri law for (1) vexatious refusal to pay
and (2) breach of contract.
In Defendant’s answer, Defendant asserts several affirmative defenses. At issue in
this motion are the following affirmative defenses: (1) Both counts of Plaintiff’s
complaint fail to state a claim for which relief can be granted, (2) Plaintiff failed to
mitigate its damages, (3) Defendant is entitled to a credit or off-set for all sums Plaintiff
has recovered on account of the damages alleged in the complaint, (4) Plaintiff’s claims
are barred and/or limited by the terms of Defendant’s policy, (5) Coverage of Plaintiff’s
damages, if any, are limited to the coverage limits available pursuant to the express terms
of the policy, and (11) Defendant reserves the right to further amend and add additional
defenses that may become known during the course of discovery.
Plaintiff argues that affirmative defenses (1) through (5) and (11) were improperly
pled because they are “bare bone legal conclusions,” insufficient to protect Plaintiff
against high costs of discovery and litigation costs. Plaintiff also contends that
affirmative defense (1) is not a proper affirmative defense, but rather is an argument
properly asserted in a motion to dismiss for a defect in Plaintiff’s prima facie case; and
that affirmative defense (11) is merely a reservation of rights to raise an affirmative
defense in the future.
In Defendant’s amended answer, filed contemporaneously with Defendant’s
opposition to Plaintiff’s motion to strike, Defendant includes additional facts in support
of affirmative defenses (2), (4), and (5). With respect to affirmative defense (2),
Defendant adds that Plaintiff failed to mitigate its damages because Plaintiff failed to use
all reasonable means to preserve property from further damage at or after the time of the
alleged loss. With respect to affirmative defenses (4) and (5), Defendant identifies the
specific sections of the policy that Defendant claims bar or limit Plaintiff’s claims and
damages. Defendant omits affirmative defenses (3) and (11) of Defendant’s original
In Defendant’s opposition to Plaintiff’s motion to strike, Defendant argues that
affirmative defense (1) is properly pled because Federal Rule of Civil Procedure
12(h)(2)(A) expressly permits raising a failure to state a claim in pleadings allowed under
Rule 7(a), and because there is no prejudice to discovery or litigation as a result of
allowing this defense in Defendant’s answer. Defendant further argues that Plaintiff’s
motion is moot as to affirmative defenses (2), (4), and (5) because Defendant pled
additional facts in its amended answer with regard to those affirmative defenses, and
moot as to the two affirmative defenses Defendant does not include in its amended
answer. Plaintiff has not filed a reply.
Rule 12(f) provides that a court “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent or scandalous matter.” Fed. R. Civ. P.
12(f). The party filing the motion to strike bears the burden of proof. Simms v. Chase
Student Loan Serv., LLC, No. 4:08-CV-1480 ERW, 2009 WL 943552, at *2 (E.D. Mo.
April 6, 2009). Because the rule is permissive, courts enjoy “liberal discretion” to strike
pleadings under Rule 12(f), but “striking a party’s pleading is an extreme measure.”
Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000).
Accordingly, “[m]otions to strike under Fed. R. Civ. P. 12(f) are viewed with
disfavor and are infrequently granted.” Lunsford v. United States, 570 F.2d 221, 229 (8th
Cir. 1977). Courts generally agree 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.” Atl. Recording Corp. v. Raleigh, No. 4:06-CV-1708
CEJ, 2009 WL 1543458, at *2 (E.D. Mo. June 2, 2009) (internal citations omitted).
As Defendant argues, Rule 12(h)(2)(A) expressly allows failures to state a claim to
be raised in an answer. See CitiMortgage, Inc. v. Just Mortgage, Inc., No. 4:09-CV-1909
DDN, 2013 WL 6538680, *8 (E.D. Mo. Dec. 13, 2013) (“[T]he court perceives no
prejudicial effect of burdensome discovery or litigating unnecessary issues by allowing
failure to state a claim to remain in defendants’ [answers].”). As a result, Plaintiff’s
motion to strike affirmative defense (1) of Defendant’s answer is denied.
This Court agrees with Defendants that affirmative defenses (2) through (5) and
(11) of Defendant’s original answer are moot because these affirmative defenses were
either omitted or pled with additional supporting facts in Defendant’s amended answer.
IT IS HEREBY ORDERED that Plaintiff’s motion to strike Defendant’s
affirmative defenses is DENIED. ECF No. 13.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 5th day of April, 2017.
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