United States District Court, E.D. Louisiana
ELIAZAR AVILA MONROY, ET AL.
ALEXANDER HENDRIX, ET AL.
ORDER AND REASONS
motion to strike Defendant Alexander Hendrix's Answer
(Rec. Doc. 15) is before the Court. Rec. Doc. 19. No.
opposition has been filed. For the reasons discussed below,
IT IS ORDERED that the motion to strike
(Rec. Doc. 19) is DENIED WITHOUT PREJUDICE.
BACKGROUND AND PROCEDURAL HISTORY
March 31, 2017, plaintiff Eliazar Avila Monroy (Avila) was
riding in a truck being driven by Defendant Alexander Hendrix
when the truck was involved in a head-on collision.
See Rec. Doc. 1 ¶¶ 5-6. The Public Safety
Officer who responded to the scene found that Hendrix was at
fault and issued him a citation for careless operation of a
vehicle. See Id. ¶ 7. Avila was transported to
University Medical Center by helicopter to be treated for
various injuries, including hip and leg injuries that
required surgery. See Id. ¶ 9.
September 18, 2017, Avila and his wife, Daniela Espinoza,
filed suit against Hendrix, as well as ACH Concrete and ACH
Lawn (two entities owned by Hendrix that employed Avila at
the time of the accident). See Id. ¶¶ 8,
11-13. Plaintiffs also sued various insurance companies.
See Id. ¶ 14. Plaintiffs allege that
Hendrix's negligence while driving caused Avila's
injuries, see Id. ¶ 8, that Hendrix's
companies are liable under theories of respondeat superior
and negligent supervision, see Id. ¶¶
12-13, and that Espinoza is entitled to damages for loss of
consortium, see Id. ¶ 10.
Hendrix was served on October 3, 2017, and his answer was due
on October 24, 2017. See Rec. Doc. 10. Defendants
ACH Lawn and ACH Concrete were served on October 4, 2017, and
their answers were due on October 25, 2017. See Rec.
Docs. 8-9. There is no evidence that the insurance companies
were ever served. By January 2018 no defendant had filed
responsive pleadings and no plaintiff had moved for entry of
default. Therefore, the Court issued an order to show cause
why the case should not be dismissed for failure to
prosecute. See Rec. Doc. 12. The next day, on
January 11, 2018, Plaintiffs filed a motion for entry of
default against all Defendants who had been served.
See Rec. Doc. 13. The Clerk of Court entered default
as to Hendrix, ACH Lawn, and ACH Concrete on January 12,
2018. See Rec. Doc. 14.
February 5, 2018, Hendrix filed an answer. See Rec.
Doc. 15. The Clerk of Court then noticed a scheduling
conference for March 8, 2018. See Rec. Doc. 18. On
February 23, 2018, Plaintiffs filed the instant motion to
strike Hendrix's answer as untimely.
Rec. Doc. 19. Any opposition was due no later than March 6,
2018, but none has been filed. However, on March 8, 2018,
counsel for Plaintiffs and Hendrix participated in the
scheduling conference and set a date for trial in January
2019. See Rec. Doc. 20.
Federal Rule of Civil Procedure 12(f), a party may move to
strike “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Granting a motion to strike “is a drastic remedy to be
resorted to only when required for the purposes of
justice.” Augustus v. Bd. of Pub. Instruction,
306 F.2d 862, 868 (5th Cir. 1962). As a result, a
“motion to strike should be granted only when the
pleading to be stricken has no possible relation to the
controversy.” Id. Plaintiffs have not met
their heavy burden at this time because the parties recently
participated in a scheduling conference to set dates for
trial, which indicates that Hendrix's answer is in fact
highly “relat[ed] to the controversy.” Striking
Hendrix's answer from the record for the mere fact that
it was untimely will only serve to further delay the instant
Plaintiffs point out in their motion, Hendrix's answer
does not change the fact that the Clerk of Court previously
entered default as to Hendrix. See Directv, Inc. v.
Young, 195 F. App'x 212, 215 (5th Cir. 2006);
Cotter v. Gwyn, No. 15-4823, 2016 WL 4479510, at *15
(E.D. La. Aug. 25, 2016). But Plaintiffs have not yet moved
for an entry of default judgment, even though default was
entered two months ago. Instead, Plaintiffs scheduled a trial
date. These facts set the instant motion apart from the
situation presented in Directv, where the plaintiff
sought to strike the defendant's untimely answer after
first moving for default judgment. See 195 F.
App'x at 215. Moreover, in Directv, the court
granted the motion to strike at the same time that it entered
default judgment against Defendant. See Id. Because
Plaintiffs have not yet moved for entry of a default judgment
against Hendrix, the instant motion to strike is
distinguishable from the motion discussed in
being said, Hendrix's repeated failures to adhere to the
deadlines imposed by the Federal Rules of Civil Procedure,
Local Rules, and Court Orders is concerning. The parties are
reminded that failure to comply with such deadlines ...