Dodd et al v. McDaniel et al
MEMORANDUM AND ORDER denying 49 Motion to Strike. Signed by Magistrate Judge Barbara D. Holmes on 6/9/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
SHARI DODD and
ROBERT WAYNE DODD, JR.,
DAVID K. MCDANIEL and
LANDSTAR INWAY, INC.
MAGISTRATE JUDGE HOLMES
MEMORANDUM AND ORDER
Pending before the Court is Plaintiffs’ Motion to Strike Certain Defenses in Defendants’
Answers (Docket No. 49), filed on May 26, 2017. For the reasons stated herein, the Motion is
DENIED. As a preliminary matter, the Court notes that there is a lack of consensus as to whether
a motion to strike is a nondispositive matter that may be determined by a magistrate judge or a
dispositive matter that must be addressed by a report and recommendation of the magistrate judge
to the district judge. See Barmore v. County Fair, Inc., No. 03-cv-888A, 2001 WL 976420, at *1
n.1 (motions to strike not dispositive) (citations omitted); Herrera v. Mich. Dep’t of Corrs.,
No. 5:10-cv-11215, 2011 WL 3862426, at *1 n.1 (motion to strike dispositive) (citations omitted).
This issue was not addressed by either party in their respective papers, and was raised for the first
time during argument. Given the lack of direct guidance in the Sixth Circuit, and at least under
the present circumstances, the Court concludes that its determination is a nondispositive one that
may therefore be issued by memorandum and order. 1
Plaintiffs originally filed a lawsuit in the Dickson County Circuit Court on August 25,
2016, for damages arising out of a June 17, 2016 multi-vehicle accident on Interstate 40 at the exit
172 ramp. See Docket No. 1-1. Defendants removed the lawsuit to this court on September 28,
2016. Docket No. 1. On September 29, 2016, Plaintiffs filed a first Amended Complaint. Docket
No. 7. Plaintiffs allege that a commercial tractor-trailer owned by Defendant Landstar Inway and
operated by Defendant David McDaniel while employed by Landstar Inway collided with a Ford
Expedition in which Plaintiff Shari Dodd was a passenger. Id. at 2-3. 2 In their answers to the
Amended Complaint, Defendants asserts the following at-issue affirmative defenses: 3
Defendant avers that there exists no proximate causation between any
averred act, omission or breach of duty by Defendant. In addition, Plaintiffs’
averred damages, injuries and/or losses were the result of conduct of persons or
entities other than Defendant.
Defendant avers that the injuries, damages and/or losses sustained by
Plaintiffs were a direct or proximate result of the negligence or fault of one or
more persons or entities and, therefore, Defendant’s liability, if any, to Plaintiffs
for damages, should be diminished, reduced or set off based upon fault and
responsibility of Plaintiffs or of such other persons and/or entities, or of both.
To the extent that the Honorable Waverly D. Crenshaw, Jr., Chief District Judge, may
disagree with this conclusion, the undersigned Magistrate Judge respectfully submits this as a
report and recommendation.
Defendant Landstar Inway is the only remaining corporate defendant. The dispositions
of the other originally named and unnamed defendants are not relevant to the pending motion.
Defendant McDaniel’s answer was filed on October 10, 2016 (Docket No. 9) and
Defendant Landstar Inway’s answer was filed on November 28, 2016 (Docket No. 14).
Defendant alleges that Exit 172, for westbound traffic on Interstate 40, was
designed and constructed by federal and state officials in such a manner so as to
cause traffic to back up on Interstate 40 requiring such traffic to use the
northernmost shoulder of Interstate 40 and encroach into the northernmost travel
lane of Interstate 40, thereby impeding the normal flow of traffic, which caused or
contributed to the subject accident.
On May 26, 2017—more than seven months after Defendants first answered—Plaintiffs
moved to strike these affirmative defenses claiming that the defenses are impermissibly vague and
“fail to comport with applicable law” by failing to identify the allegedly culpable nonparties and
failing to provide a factual basis for the claims of comparative fault. Docket No. 49 at 2. 4 The
“applicable law” to which Plaintiffs refer is Tennessee R. Civ. P. 8.03. Docket No. 50 at 2.
Analysis and Conclusion
Federal Rule of Civil Procedure 12(f) permits the court to strike, at any time, an
“insufficient defense or any redundant, immaterial, impertinent, or scandalous” matter. “[I]t is
well-established that the action of striking a pleading should be sparingly used by the courts.”
Brown v. Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.1953). Thus, “a
motion to strike should be granted only when the pleading to be stri[c]ken has no possible relation
to the controversy.” Parlak v. United States Immigration & Customs Enforcement, 2006 WL
3634385, at *1 (6th Cir.2006) (quoting Brown, 201 F.2d at 822).
The Court recognizes that Plaintiffs’ current counsel only became involved in this case
in February of 2017. See Docket No. 22 (order substituting counsel). Nevertheless, there was
ample time for Plaintiffs’ previous counsel to have raised this issue following Defendants’ answers
if there was, as Plaintiffs claim, some exigency to its resolution. Further, as noted below, even
when finally raising the issue, Plaintiffs provided no authority supporting their contention that a
Plaintiff is entitled to know specific details of alleged other tortfeasors prior to expiration of the
original statute of limitations. Cf. Bolton v. United States, No. 2:12-cv-3031, 2013 WL 3965427, at
*4 (W.D. Tenn. Aug. 1, 2013) (“By arguing that facts have not been alleged to support the elements
of the defense, Plaintiffs are implicating the Government's future burden of proof rather than its present
To the extent that there is a divergent approach to the question of the sufficiency of a
comparative fault defense in a federal pleading, the Court finds more persuasive the reasoning in
Thomas v. Jenkins, 3:16-cv-1830, 2016 WL 6566707, at *3-4 (M.D. Tenn. Nov. 4, 2016) (Sharp,
J.), which is directly on point. Thomas was also a vehicle crash case, in which the comparative
fault defense was even less descriptive than the second, third, and fifth affirmative defenses
asserted by Defendants in this case. Nevertheless, the plaintiffs’ motion to strike was denied,
because the court concluded the defense was sufficient under Fed. R. Civ. P. 8, which controls in
diversity cases, such as the one here, and only requires that a plaintiff be afforded fair notice of the
nature of the defense. Id. at *3.
This same “fair notice standard” was previously recognized by this court in Bowen v.
Paisley, which held that “a defendant asserting an affirmative defense is not required to plead
specific supporting facts,” and may instead plead an affirmative defense in general terms, “as long
as it gives plaintiff fair notice of the nature of the defense.” No. 3:13-cv-0414, 2014 WL 2708499,
at *7 (M.D. Tenn. June 16, 2014) (Trauger, J.) (citation omitted). Here, Defendants have
“adequately provided notice to [Plaintiffs] of the grounds [comparative fault] for the particular
defenses at issue.” Id. Other courts have agreed as well that lack of identification of third parties
by names and of other details does not prevent an affirmative defense from putting a plaintiff on
fair notice that third parties may be at fault. See e.g. Rosada v. John Wieland Homes and
Neighborhoods, Inc., 3:09-cv-653, 2010 WL 1249841, at *4 (M.D. Fla. March 25, 2010) (failure
to identify third parties by name does not prevent a comparative-fault defense from adequately putting
plaintiff on notice that third parties may be at fault); Cox v. Nestle USA, Inc., No. 06-1263, 2008 WL
4443266, at *2 (W.D. Tenn. Sept. 26, 2008) (same); Kizziah v. Fire Management Systems, No. 1:04cv- 374, 2006 WL 218026, at *9 (E.D. Tenn. Jan. 27, 2006) (although defense did not identify anyone
other than defendant who caused plaintiff’s damages, it was sufficient to properly assert a comparative
fault defense). This Court concurs.
The Court is not convinced that the Free v. Carnesale case relied upon by Plaintiffs
compels a different result. 110 F.3d 1227 (6th Cir. 1997). Free did not address the apparent
distinction between the sufficiency of a pled affirmative defense under Tenn. R. Civ. P. 8.03 and
under Fed. R. Civ. P. 8. Additionally, as noted, multiple other courts since Free, including courts
in the Sixth Circuit have applied the “fair notice” standard of Fed. R. Civ. 8 to comparative fault
defenses. Most importantly, and notwithstanding Rule 8.03, Tennessee law leaves open the
possibility “that a defendant may identify a responsible party after the filing of its [a]nswer, so
long as it does so sufficiently in advance of trial to allow plaintiff the opportunity to join the
responsible party.” Thomas, supra, at *4. Indeed, the concern in Free was whether, as of the time
of trial, the defendant had given adequate notice of or sufficient support for its comparative fault
defense. For all of these reasons, the Court declines to construe Free to require that the defenses
at issue be stricken.
The Court acknowledges that the Estate of Robles case relied on by Plaintiffs reaches a
different outcome. Estate of Robles v. Vanderbilt University, No. 3:11-cv-00399, 2011 WL
5521172 (M.D. Tenn. Nov.14, 2011) (Nixon, J.) However, in that case, the defendants were
expressly allowed the opportunity to amend their answer to assert comparative fault after further
discovery. Id. at *6. Here, Plaintiffs have not allowed for that prospect. 5
Whether or not such an amendment would be permissible given the timing restrictions of
Fed. R. Civ. P. 8(c)(1) for raising a comparative default defense was not addressed by Plaintiffs.
Arguably, Plaintiffs could agree for Defendants to now strike the at-issue defenses and raise them
later without prejudice. However, the Court supposes that Plaintiffs would not agree to allow
Defendants to amend their answers after further discovery, because Plaintiffs asserted in argument
that this is an urgent issue as they are in need of more detailed information to further amend their
complaint prior to expiration of the statute of limitations. Plaintiffs did not however provide the
Court with any specific supporting authority for that contention. Additionally, the Court can
“Striking defenses under Rule 12(f) is an extraordinary action that is not necessary at this
early stage in this case.” Bowen, supra, at *7. Plaintiffs’ motion to strike is therefore DENIED.
It is SO ORDERED.
BARBARA D. HOLMES
United States Magistrate Judge
conceive of a variety of circumstances in which comparative fault defenses might be raised for the
first time after expiration of a plaintiff’s statute of limitations. Put another way, Plaintiffs have also
failed to convince the Court that there is a timing problem needing the remedy they seek.
Defendants assert that Tenn. Code Ann. § 20-1-119 saves Plaintiffs from any limitations issues.
However, the applicability and scope of that statute are not before the Court, and the Court
therefore declines to address those issues. Moreover, if Plaintiffs were that concerned about a
potential statute of limitations problem, it was “incumbent upon [them] to conduct discovery or
take other appropriate action to identify the third party.” Cox, 2008 WL 4443266 at *1 (citation
omitted). Plaintiffs have had ample time since Defendants’ answers to conduct discovery about
the affirmative defenses, and to seek the Court’s assistance if needed with such discovery.
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