Griffin v. Wilcohess LLC

Filing 11

ORDER denying 7 MOTION to Strike Or To Make More Definite and Certain. Signed by Honorable Joseph F Anderson, Jr on 04/08/2010.(bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA R O C K HILL DIVISION J a m e s Griffin, ) ) P l a in tif f , ) ) v. ) ) Wilcohess, LLC, d/b/a Wendy's, ) ) D ef en dan t. ) ________________________________ ) C/A No. 0:10-489-JFA

ORDER

T h e plaintiff has moved to strike certain defenses asserted in the answer, or in the a lte rn a tiv e , to make statements more definite and certain. After reviewing the positions of the parties set forth in their pleadings, the court has determined that a hearing is not necessary a n d that the motion should be denied. A s an initial proposition, the defendant notes that a motion for a more definite s ta te m e n t of a pleading is proper only when directed to a pleading "to which a responsive p le a d in g is allowed." Fed. R. Civ. P. 12(e). Since the motion for a more definite statement is made with reference to the defendant's answer (a pleading to which a response is not re q u ire d ), the motion is defective. W ith regard to the motion to strike, as the defendant correctly observes, all that is r e q u ir e d in federal court is notice pleading, and the particulars of a party's claim or defense a re to be more fully developed during the discovery process. Here, the defendant has a ss e rte d various defenses available (such as intervening negligence of a third party) for 1

w h i c h discovery may be appropriate. If and when it is determined that some or all of these d e f en s e s have no merit, the defendant may withdraw them, or the plaintiff may move for s u m m a r y judgment on those defenses. F o r these reasons, the plaintiff's motion [Doc. No. 7] is denied. The court notes that the third defense alleges improper venue, suggesting that the alleged food poisoning occurred in Cherokee County, South Carolina, but that the action was filed in York County. The case w as thereafter removed to this court. Cherokee County is in the Greenville/Spartanburg D iv is io n of this Federal District and York County is in the Columbia Division. Thus, it is n o t clear whether the defendant is affirmatively seeking to have this case transferred to the G re e n v ille Division. If that is the defendant's intention, an appropriate motion should be filed a n d the court will rule upon it in due course. If, on the other hand, the defendant does not w ish to transfer venue, then the defendant should timely file a notice indicating that the third d e f e n s e is abandoned. IT IS SO ORDERED.

April 8, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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