Breland v. Long et al

Filing 35

ORDER denying 9 Motion for Default Judgment and denying Plaintiff's Motion to Strike (ECF No. 14-7). Signed by Honorable J Michelle Childs on 9/8/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Melanie Breland,

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Plaintiff,
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v.
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Ricky Long and Miller Transport, LLC,
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Defendants.
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____________________________________)

Civil Action No. 5:17-cv-00070-JMC

ORDER

This matter is before the court pursuant to Plaintiff Melanie Breland’s (“Plaintiff”) Motion
to Strike and Motion for Default Judgment. (ECF No. 9.) Defendants Ricky Long and Miller
Transport, LLC 1 oppose Plaintiff’s motion and request the court to deny the Motion to Strike and
the Motion for Default Judgment. (ECF No. 14.) For the reasons set forth below, the court
DENIES Plaintiff’s Motion to Strike and Motion for Default Judgment (ECF No. 9).
I. JURISDICTION
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. Plaintiff is a
resident and citizen of the State of South Carolina. (ECF No. 1 at 1.) Defendant Long is a resident
and citizen of the State of Illinois, and Defendant Miller Transport, LLC is organized and
incorporated in the State of Mississippi and has its principal place of business in the State of
Mississippi. Id. The amount in controversy in this matter exceeds $75,000.00 as Plaintiff alleges
that she has incurred over $169,000.00 in medical expenses, suffered serious personal and

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Defendant Long was an agent/employee/servant of Defendant Miller Transport, LLC and his acts
are thereby imputed to Miller Transport, LLC.
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permanent injuries, lost wages, loss of enjoyment of life, and future medical expenses as a result
of this motor vehicle accident. (ECF No. 1 at 2.)
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 25, 2016, Plaintiff filed a complaint for a jury trial in the Orangeburg Court of
Common Pleas. (ECF No. 1-1.) This action arises out of a motor vehicle accident that occurred
in Orangeburg County, South Carolina, on October 31, 2013. Id.
On November 4, 2016, Defendant Long was served with the Summons and Complaint via
the South Carolina Department of Motor Vehicles pursuant to South Carolina’s statute governing
service on a non-resident motorist or motor carrier, codified in S.C. CODE ANN. §§ 15-9-350
through 15-9-380. (ECF No. 8-2.) Defendant Long asserts that Plaintiff did not serve the
documents according to the terms of the statutes, and as a result, service was not effected until the
date Defendant Long “otherwise” received the complaint. (ECF No. 13 at 2.) The court found
that service was not effected until Defendant Long first obtained a copy of the Complaint from the
Orangeburg Clerk of Court on December 15, 2016, because Plaintiff did not adhere to the statutory
requirements for service of process. (ECF No. 33.)
On December 16, 2016, Defendant Long filed an Answer in state court. (ECF No. 14-7.)
On January 9, 2017, Defendant Long filed an amended Answer in this court. (ECF No. 2.) On
February 8, 2017, Plaintiff filed a Motion to Strike and a Motion for Default Judgment, asserting
Defendant Long failed to timely answer within thirty (30) days as required by the South Carolina
Rules of Civil Procedure. S.C. R. Civ. P. 12(a); ECF No. 9.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) permits a district court, on motion of a party, to
“strike from a pleading an insufficient defense.” Rule 12(f) motions are generally viewed with

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disfavor “because striking a portion of a pleading is a drastic remedy and because it is often sought
by the movant simply as a dilatory tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316,
347 (4th Cir. 2001).
Rule 55(a) of the Federal Rules of Civil Procedure authorizes the entry of a default
judgment when a defendant fails “to plead or otherwise defend” in accordance with the Rules.
Although the clear policy of the Rules is to encourage dispositions of claims on their merits, trial
judges are vested with discretion, which must be liberally exercised, in entering such judgments
and in providing relief therefrom. See U.S. v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982); see also
Fed. R. Civ. P. 55(c), 60(b).
IV. ANALYSIS
The dispute in this matter is whether Defendant Long’s Answer was timely. Under Rule
12(a) of the South Carolina Rules of Civil Procedure, a defendant must serve his answer within 30
days after the service of the complaint upon him. Plaintiff incorrectly asserts that Defendant
Long’s Answer was not filed until January 9, 2017. (ECF No. 9-1.) The document filed on January
9, 2017, was Defendant Long’s amended Answer. Defendant Long’s original Answer was filed
in state court on December 16, 2016 (ECF No. 14-7), less than 30 days after he was served with
the Complaint. Having reviewed the record, the court does not find any basis to grant Plaintiff’s
Motion for Default Judgment.
Additionally, Plaintiff’s Motion to Strike is untimely. Rule 12(f)(2) of the Federal Rules
of Civil Procedure governs motions to strike and provides that a court may strike a response on a
motion made “within 21 days” after the moving party is served with the pleading. Defendant Long
served his initial Answer on December 16, 2016 (ECF No. 14-7), and an amended Answer on
January 9, 2017 (ECF No. 2). Thus, the deadline to file a motion to strike Defendant Long’s

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original Answer was January 6, 2017, and the deadline for a motion to strike the amended Answer
was January 31, 2017. However, Plaintiff did not file her Motion to Strike until February 8, 2017.
(ECF No. 9.) As a result, Plaintiff’s Motion to Strike is untimely as to both Defendant’s original
Answer and the amended Answer.
V. CONCLUSION
Based on the foregoing, Plaintiff’s Motion to Strike and Motion for Default Judgment (ECF
No. 9) is DENIED.

IT IS SO ORDERED.

United States District Judge
September 8, 2017
Columbia, South Carolina

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