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Wilson v. King


February 24, 2010


The opinion of the court was delivered by: Tucker, J.


Presently before this Court is Plaintiff's Motion to Strike the Answer of Defendants' Verizon, Inc., Jack Brennan and Louise Knight (Doc. 80) and Defendants' Response in Opposition thereto (Doc. 84). For the reasons set forth below, the Court denies Plaintiff's Motion.


On September 19, 2008, Plaintiff filed a Third Amended Complaint (Doc. 52) against Defendants Verizon, Inc., Jack Brennan, Louise Knight, Louis Lombardi, and Derek Liss for allegedly engaging in a conspiracy against Plaintiff.*fn1 The pertinent facts giving rise to the alleged conspiracy are as follows. In 1993, Plaintiff opened a newsstand in Philadelphia, PA at the northwest corner of 16th Street and John F. Kennedy Boulevard in front of Suburban Station. In 1995, Plaintiff submitted an application to the Lottery Commission to obtain a license to sell Instant Tickets in his newsstand. Plaintiff was informed by the Commonwealth of Pennsylvania that he must have a telephone line installed to obtain the license. In June 1996, the City of Philadelphia passed an ordinance permitting Plaintiff to supply electricity to his newsstand. Plaintiff then contracted with an electrician to begin the construction project that Plaintiff estimated would have cost him no more than $4,000.00. On the day Plaintiff and his contractor started drilling on the sidewalk, Plaintiff alleges that Defendant Lombardi, General Manager of Compass Management and Leasing, Inc. ("CML") at Suburban Station, immediately came outside and stopped them from completing the work. Plaintiff claims Defendant Lombardi then had concrete poured over the contractor's work.

Sometime over the course of the next two years, Plaintiff sought legal assistance from Attorney Derek Liss to assist him in obtaining the requisite written permission from CML to complete the electrical work. Plaintiff must have inquired with Defendant Verizon, Inc. about an alternative way to supply a phone line to his newsstand instead of accessing conduits from Suburban Station. In December 1998, Plaintiff alleges that Defendant Verizon, Inc. presented him with a plan to run wire conduits from a location further up the street and quoted that the job would cost at least $25,000.00. As this was cost prohibitive, Plaintiff looked again for an alternative. In 1999, Verizon expressed it would be willing to run a phone line from the second floor of Suburban Station if Plaintiff obtained permission from Suburban Station and SEPTA to do so. Presumably, Defendant Lombardi refused to grant permission.

Plaintiff claims that beginning in 1996, Defendants conspired and purposely engaged in the aforementioned conduct to prevent Plaintiff from installing a lottery machine in his newsstand. Plaintiff further alleges Defendants knew Plaintiff could not survive without a lottery machine.

Plaintiff filed the Third Amended Complaint on September 19, 2008 (Doc. 52) seeking $150,000.00 in damages (Doc. 61). Plaintiff served the Complaint upon the Defendants on December 31, 2008 (Doc. 65), making the Defendants' answers due on January 20, 2009. Defendant Lombardi filed an Answer on January 9, 2009 (Doc. 67) and on January 12, 2009, Defendant Lombardi filed a Motion for Summary Judgment (Doc. 68). Upon consideration of Defendant Lombardi's Motion and the Plaintiff's Response in Opposition thereto (Doc. 75), the Court granted Defendant Lombardi's Motion (Doc. 76) and dismissed him from the case on July 17, 2009.

On November 11, 2009, Defendant Verizon, Inc. filed an Answer (Doc. 79) to Plaintiff's Third Amended Complaint.*fn2 In the Answer, Defendant generally denied the allegations set forth in Plaintiff's Complaint on the ground that it lacked sufficient information to formulate a belief as to the truth or falsity of the allegations. Defendant also asserted the affirmative defense that Plaintiff failed to meet the two-year statute of limitations Pennsylvania has with respect to conspiracy claims and requested that the Court enter judgment in Defendant's favor and dismiss Plaintiff's Complaint.*fn3

On November 16, 2009, Plaintiff filed this Motion to Strike Defendant's Answer (Doc. 80). On November 25, 2009, Defendant filed a Response in Opposition thereto (Doc. 84). The Court now addresses this pending motion.


Rule 12(f) of the Federal Rules of Civil Procedure provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A party may file a motion to strike within twenty (20) days after being served with the pleading. Id. Though the decision to grant a motion to strike under Rule 12(f) is within the court's discretion, motions to strike are "not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues." N. Penn Transfer, Inc. v. Victaulic Co. of Am., 859 F. Supp. 154, 158 (E.D. Pa. 1994) (citing River Road Dev. Corp. v. Carlson Corp., No. 89-7037, 1990 WL 69085, at *5 (E.D. Pa., May 23, 1990)). See also Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664-65 (7th Cir. 1992). "Partly because of the practical difficulty of deciding cases without a factual record it is well established that striking a pleading should be sparingly used by courts. It is a drastic remedy to be resorted to only when required for the purposes of justice." N. Penn Transfer, Inc., 859 F. Supp. at 158 (citing United States v. Consolidation Coal Co., no. 89-2124, 1991WL 333694 at *1 (W.D. Pa., July 5, 1991)).


In his Motion to Strike, Plaintiff urges the Court to strike Defendant's Answer as untimely. Plaintiff served his Complaint upon Defendant on December 31, 2008. Under the Federal Rule of Civil Procedure 12(a), Defendant had twenty (20) days to file a responsive pleading to Plaintiff's Third Amended Complaint, making the Answer due on or before January 20, 2009. Defendant did not file an Answer until November 11, 2009, "three hundred days past the twenty day limit." Plaintiff contends Defendant violated the Federal Rules of Civil Procedure and that allowing Defendant to file the Answer so long after the deadline "is not fair."

Defendant disagrees and argues that the Court should deny Plaintiff's Motion to Strike for two reasons. First, Defendant argues that the instant motion should be denied because the Court previously denied Plaintiff's Motion for Default Judgment with prejudice on July 17, 2009. Defendant first cites Rule 55 of the Federal Rules of Civil Procedure, which provides the proper procedures for seeking an entry of default judgment. Defendant next relies on Antoine v. U.S. Bank Nat'l Ass'n, 547 F. Supp. 2d 30 (D.D.C. 2008), to explain that default judgment is inappropriate where a plaintiff fails to first seek entry of default from the clerk of court before filing their motion for default judgment. Defendant goes on to note that Plaintiff failed to seek an entry of default before filing his motion for default with the Court.*fn4 Defendant's second argument is that Plaintiff's motion to strike should be denied as moot because on November 19, 2009, three days after filing the motion to strike, Plaintiff filed a response to Defendant's answer (Doc. 82), and his reply, therefore, renders his motion to strike "nonsensical."

The precise issue in this case, which few courts, including the Third Circuit, have addressed is whether the untimely filing of a responsive pleading, particularly an answer to a complaint, is, on its own, a sufficient ground to strike the tardy pleading. In answering this question, courts in other jurisdictions have balanced the degree of prejudice suffered by the moving party with the desire to resolve cases on the merits rather than by default. See e.g., Marfia v. T.C. Zirant Bankasi, 100 F.3d 243, 249 (2d Cir. 1996) (indicating the preference that "litigation disputes be resolved on the merits" as the reason to deny motion to strike pleading).

The most analagous case to this matter is Canady v. Erbe Elektromedizin GMBH, 307 F. Supp. 2d 2 (D.D.C. 2004). In Canady, the defendants served the plaintiffs with counterclaims on August 5, 1997. Id. at 7. The plaintiffs' response was due within twenty days pursuant to Rule 12(a)(2) of the Federal Rules of Civil Procedure, however, the plaintiffs did not respond until March 10, 1998, "more than six months after the 20-day period had elapsed, and after the defendants had filed their first motion for entry of default judgment on February 27, 1998." Id. In their defense, the plaintiffs claimed they had a mutual understanding with the defendants that no issue would be raised regarding the tardy filing; the defendants however, denied any such understanding existed. Id. at 8.

The Canady Court refused to strike the plaintiffs' response even after acknowledging that it would be within the proper exercise of the court's discretion to do so. Id. In reaching this decision, the Court first highlighted that the defendants had sought the motion to strike in an effort to obtain default judgment on their counterclaim against the plaintiffs. Id. The Court went on to explain that granting a motion to strike under such circumstances would "contravene the established policies disfavoring motions to strike... and favoring the resolution of cases on their merits." Id. ("... if the court were to rule in favor of the defendants, where would that leave the court and the parties? The answer to this question provides the guiding force for the court's decision.").

Frequently relying on the reasoning in Canady, other courts have also denied motions to strike late pleadings in favor of deciding cases on their merits. See e.g., Khadka v. Rajamani, No. 1:08cv1320, 2009 WL 910849, at * 2 (E.D. Va. Apr. 1, 2009) ("[T]he Answer was only one day late and its tardiness did not prejudice [the plaintiff] in the least. Moreover, granting the motion to strike would allow the plaintiff to avoid resolving his case on the merits. The Court will not sanction such an outcome."); Mitchell v. First Cent. Bank, Inc., No. 2:08CV6, 2008 WL 4145449, at * 2 (N.D. W.Va. Sept. 8, 2008) ("[D]efendants have not shown that they have been prejudiced in any way by [plaintiff's] late... answer to the counterclaim. Furthermore,...defendants are seemingly seeking to strike... so that they can then proceed toward a default judgment. Disposing of cases on the merits, however, is favored in this Court."); Azikiwe v. Nig. Airways Ltd., No. CV-03-6387, 2006 WL 2224450, at * (E.D.N.Y. July 31, 2006) (refusing to grant the plaintiff's motion to strike the defendants' answer that was filed one month late because of the disfavored status of motions to strike and the Second Circuit's "preference that litigation disputes be resolved on the merits, [and] not by default").

Additionally, courts note that "[e]ven if a motion to strike is 'technically appropriate and well-founded,' motions to strike defenses as insufficient are often denied in absence of a showing of prejudice to the moving party." See e.g., Mitchell, 2008 WL 4145449, at * 2 (internal citation omitted).

Here, the facts supporting Plaintiff's Motion to Strike appear stronger than Canady; Defendants filed their Answer ten months late versus the six month tardiness in Canady. Nonetheless, the Court still finds that granting the motion is inappropriate under the present circumstances. Similar to the defendants in Canady, Plaintiff's attempt to strike Defendant's Answer would leave the Court faced with the drastic remedy of default judgment. This Court finds that such an outcome would undermine the strong interest the Court has in resolving disputes on the merits. See Hill v. Williamsport Police Dep't, 69 F. App'x 49, 51 (3d Cir. 2003) ("Our Court 'does not favor entry of defaults or default judgments',... as it prefers adjudications on the merits."); United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-95 (3d Cir. 1984) (stating the court's preference for deciding cases on the merits over default judgment); Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 2004) ("[W]e have repeatedly stated our preference that cases de disposed of on the merits whenever practicable."). Furthermore, Plaintiff has failed to demonstrate what prejudice, if any, he has suffered as a result of Defendants' late filing. For these reasons, the Court finds that the prejudicial effect on Plaintiff does not outweigh the significant interest the Court has in deciding the case on the merits. As such, the Court denies Plaintiff's motion to strike.*fn5


For the aforementioned reasons, Plaintiff's Motion to Strike Defendants' Answer to the Third Amended Complaint is denied. An appropriate Order follows.

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