Tanner et al v. Johnston et al

Filing 41

MEMORANDUM DECISION AND ORDER denying 27 Motion to Strike. 12/8/11 Hearing is stricken. Signed by Judge Ted Stewart on 12/2/11 (alt)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

PATRICIA TANNER, an individual; and
TJINTA ESTATES, LLC, a Utah limited
liability company,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
MOTION TO STRIKE

vs.

HEATH JOHNSTON, an individual; CRAIG
LEWIS, an individual; TIMOTHY ROSS, and
individual; H & S INVESTMENTS, LLC, a
Utah limited liability company d/b/a SUMMIT
DEVELOPMENT & MANAGEMENT;
JUSTIN JOHNSON, an individual; and
AMERICAN COMMERCIAL REAL
ESTATE SPECIALISTS GROUP, LLC, a
Utah limited liability company d/b/a/ NAI
UTAH COMMERCIAL REAL ESTATE;
UTAH COUNTY COMMERCIAL REAL
ESTATE SPECIALISTS GROUP, LLC, a
Utah limited liability company; JOHN DOES
1-10,

Case No. 2:11-CV-28 TS

Defendants.

1

This matter is before the Court on Plaintiffs’ Motion to Strike Answers of Defendants
Heath Johnston, Craig Lewis, Timothy Ross, H&S Investments, LLC, and Justin Johnston, and
for Entry of Default.1 For the reasons provided below, the Court will deny the Motion.
I. BACKGROUND
Plaintiffs filed their original Complaint in this matter on January 6, 2011.2 On May 2,
2011, Defendants Craig Lewis, H&S Investments, Heath Johnston, Justin Johnson, and Timothy
Ross (collectively “Defendants”) requested an extension of time in which to file their Answer to
Plaintiffs’ Complaint.3 Plaintiffs opposed Defendants’ Motion for Extension of Time and sought
default judgment against the Defendants.4
On May 16, 2011, the Defendants filed their Answer5 and subsequently, on May 17,
2011, the Plaintiffs filed their Amended Complaint.6 On May 23, 2011, this Court entered its
Memorandum Decision and Order,7 granting Defendants’ Motion for Extension of Time to
Answer and denying as moot Plaintiffs’ Motion for Entry of Default Judgment. On June 2, 2011,

1

Docket No. 27.

2

Docket No. 2.

3

See Docket No. 9.

4

See Docket Nos. 10 & 17.

5

Docket No. 19.

6

Docket No. 20.

7

Docket No. 22.
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the Defendants filed their Answer to the Amended Complaint.8 Plaintiffs then filed the instant
Motion on June 27, 2011.
II. DISCUSSION
Through this Motion, Plaintiffs request that the Court strike Defendants’ Answers in their
entirety and enter default judgment against the Defendants.9 Plaintiffs assert that such relief is
appropriate because the Defendants have failed to fairly respond to the substance of their
Complaint as required by Fed.R.Civ.P. 8(b)(2). Defendants argue that Plaintiffs are not entitled
to entry of default because their Answer fully and fairly responds to the substance of all
allegations raised in Plaintiffs’ Complaints and because Defendants have demonstrated the intent
to defend against Plaintiffs’ claims.
Fed.R.Civ.P. 8 provides general rules for pleading. Fed.R.Civ.P 8(b) deals specifically
with defenses, admissions, and denials. It provides:
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted
against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials—Responding to the Substance. A denial must fairly respond to the
substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the
allegations of a pleading—including the jurisdictional grounds—may do so by a
general denial. A party that does not intend to deny all the allegations must either

8

Docket No. 24.

9

In their Reply, Plaintiffs for the first time propose an alternative remedy. Plaintiffs
request that if the Court finds default judgment is not appropriate, this Court strike Defendants’
Answer and require that the Defendants submit an amended answer within 10 days of the Court’s
order. This Court declines to consider arguments or relief raised for the first time in Plaintiffs’
Reply. See United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir. 1996).
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specifically deny designated allegations or generally deny all except those
specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny only
part of an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or
information sufficient to form a belief about the truth of an allegation must so
state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegation—other than one relating to the
amount of damages—is admitted if a responsive pleading is required and the
allegation is not denied. If a responsive pleading is not required, an allegation is
considered denied or avoided.10
In considering the application of Fed.R.Civ.P. 8, courts have held that “it is appropriate in
some situations to strike a pleading for gross violation of Rule 8 . . . or when the material
contained in the pleading is scandalous, immaterial or redundant.”11 However, the Federal Rules
“are designed to avoid basing decisions on the merits on pleading technicalities.”12
In the instant action, Plaintiffs assert that “Defendants’ Answers are nothing more than
empty shells, strings of meaningless denials aimed at avoiding responding to the substance of
[Plaintiffs’] allegations.”13 For this reason, Plaintiffs assert that “Defendants’ Answers should be
stricken in their entirety, and default entered against the [] Defendants in [Plaintiffs’] favor.”14
Plaintiffs argue that the Answers should be stricken pursuant to Fed.R.Civ.P. 12(f), which

10

Fed.R.Civ.P. 8(b).

11

Asay v. Hallmark Cards, Inc., 594 F.2d 692, 697 n.2 (8th Cir. 1979) (citing Skolnick v.
Hallett, 350 F.2d 861 (7th Cir. 1965)).
12

In re Credit Indus. Corp., 366 F.2d 402, 411 (2d Cir. 1966).

13

Docket No. 28, at 18.

14

Id.
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provides that “the court may order stricken from any pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Plaintiffs assert that this result is supported by the Tenth Circuit’s holding in United
States v. Charles Schwab & Co., Inc.15 The Court is not persuaded that Schwab is on point. That
case is distinguishable from this case in that Schwab involved a forfeiture action in which a
claimant failed to file a timely claim.16 The claimant’s answer was struck, and default judgment
entered on the government’s behalf, only because the claim was filed late—not for any alleged
default in the answer.17 The Court is not persuaded that this holding justifies striking a timely
filed answer and entering a default judgment for a plaintiff where an answer is merely alleged to
be deficient in form.
Plaintiffs assert that Defendants’ Answer does not “fairly respond to the substance of
[Plaintiffs’] allegation[s].”18 Plaintiffs take issue with three types of denials by Defendants: (1)
that Plaintiffs’ allegations constitute legal conclusions; (2) that the documents speak for
themselves; and (3) that the Defendants lack knowledge or information sufficient to form a belief
as to the truth of an allegation.
Without delving into the individual responses, the Court notes that many of the
Defendants’ answers do not fully respond to the substance of Plaintiffs’ allegations. However,

15

221 F.3d 1353, 2000 WL 985738 (10th Cir. 2000).

16

See id. at *1.

17

See id.

18

Fed.R.Civ.P. 8(b)(2)
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the Court is not persuaded that these failures on the part of Defendants constitute redundant,
immaterial, impertinent, or scandalous matter, or a gross violation of Fed.R.Civ.P. 8. Moreover,
the Court notes that each of Defendants’ responses constitutes a denial under Fed.R.Civ.P. 8(b).
To the extent Plaintiffs are convinced that their documentation disproves said denial, they are
welcome to seek a resolution of the dispute on the merits. The Court is not persuaded, however,
that the intent of the Federal Rules, and more specifically Fed.R.Civ.P. 8, is to provide for speedy
resolution of claims through default judgment. Rather, the Court will deny Plaintiffs’ Motion
and encourage the parties to seek a speedy resolution of this action on its merits.
III. CONCLUSION
It is therefore
ORDERED that Plaintiffs’ Motion to Strike Answers of Defendants Heath Johnston,
Craig Lewis, Timothy Ross, H&S Investments, LLC, and Justin Johnston, and for Entry of
Default (Docket No. 27) is DENIED. The hearing on this matter, currently set for December 8,
2011, is STRICKEN.
DATED December 2, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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