Valley Boys, Inc. v. State Farm Fire and Casualty Company

Filing 54

ORDER denying 46 Motion to Strike. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VALLEY BOYS, INC.,
Plaintiff,

8:14CV159

vs.
ORDER
STATE FARM INSURANCE COMPANY,
Defendant.

This matter is before the court on defendant State Farm Insurance Company's
("State Farm's") motion to strike, Filing No. 46. This action was removed from state
court under 28 U.S.C. §§ 1441 and 1446. Jurisdiction is premised on diversity of
citizenship under 28 U.S.C. § 1332.
In its amended complaint, the plaintiff asserts claims for breach of contract and
bad faith in connection with denials of insurance claims. Filing No. 43, Amended
Complaint. Valley Boys, Inc. seeks damages in the amount of over three million dollars,
as well as "all general and compensatory damages owed under the Policies, interest,
fees, costs, and reasonable attorneys’ fees pursuant to Neb. Rev. Stat. § 44-359, and
such other relief as the Court deems appropriate under the circumstances." Id. at 20.
Defendant moves to strike the plaintiff's claim for attorneys’ fees under Neb. Rev. Stat. §
44-359.1

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That statute provides:

In all cases when the beneficiary or other person entitled thereto
brings an action upon any type of insurance policy, except workers'
compensation insurance, or upon any certificate issued by a fraternal
benefit society, against any company, person, or association doing
business in this state, the court, upon rendering judgment against such
company, person, or association, shall allow the plaintiff a reasonable sum

Under Fed. R. Civ. P. 12(f), courts may strike “from any pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). Courts enjoy liberal discretion to strike pleadings under this provision. BJC
Health System v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007). Striking a
party's pleading, however, is an extreme and disfavored measure. Id. A motion to
strike, however, is neither an authorized nor a proper way to procure the dismissal of all
or part of a claim. 5C Wright & Miller, Fed. Prac. & Proc. § 1380 (2008).
The plaintiff's "claim" for attorneys’ fees is not a freestanding claim, but a prayer
for relief—part of the plaintiff's damages should it prevail on its claims. Although both
parties argue the merits of the applicability of the attorney's fees statute, the court finds
the motion to strike is premature. Numerous fact issues await development. Resolution
of the issue of whether attorneys’ fees will ultimately be available need not be
addressed at this time. Accordingly,
IT IS ORDERED that:
1.

Defendant's motion to strike (Filing No. 46) is denied.

DATED this 15th day of June, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

as an attorney's fee in addition to the amount of his or her recovery, to be
taxed as part of the costs.
Neb. Rev. Stat. § 44-359.

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