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Supermedia, LLC v. W.S. Marketing

December 16, 2011



This cause comes before the Court pursuant to Plaintiff Supermedia, LLC's Motion to Strike Defendant's Answer, Affirmative Defenses and Counter Claim (Doc. # 20), filed on October 31, 2011. Defendant W.S. Marketing d/b/a Ask Gary filed a response in opposition to the Motion (Doc. # 27) on November 14, 2011. For the reasons that follow, the Court grants the Motion in part and denies it in part.

I. Background

Supermedia filed suit in this Court on February 11, 2011, alleging that Ask Gary failed to pay Supermedia amounts due under various written contracts for advertising. (Doc. # 1 at ¶¶ 7-14). Ask Gary filed a Motion to Dismiss for Failure to Properly State a Cause of Action, or in the Alternative, for a More Definite Statement (Doc. # 3) on March 29, 2011. This Court denied that motion on August 17, 2011 (Doc. # 13).

Pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), Ask Gary was required to file an answer to the Complaint within fourteen days of the Court's order denying the Motion to Dismiss. Thus, Ask Gary's responsive pleading was due by August 31, 2011. Ask Gary did not timely file its responsive pleading or move the Court for an extension of time to do so.

On October 28, 2011, the last day of discovery and more than two months past the deadline, Ask Gary filed its Answer, Affirmative Defenses, Counterclaim and Demand for Jury Trial (Doc. # 17). Ask Gary did not request leave of this Court to do so. This pleading is the object of Supermedia's Motion to Strike (Doc. # 20).*fn1

Supermedia argues that Ask Gary filed its responsive pleading "in bad faith and in a blatant attempt to avoid summary judgment." (Id. at ¶ 12). Supermedia further asserts prejudice because Ask Gary's responsive pleading was filed on the deadline for completion of discovery. (Id. at ¶ 13). As such, Supermedia asks this Court to strike or disallow the pleading or, at a minimum, strike or disallow Ask Gary's Affirmative Defenses and Counterclaim. (Id. at 3).

Ask Gary filed its Response to Plaintiff's Motion to Strike Answer, Affirmative Defenses and Counterclaim (Doc. # 27) on November 14, 2011. Ask Gary argues that because "lawsuits should generally be decided on their merits" Supermedia should not be allowed to prevail "by resorting to a technicality." (Id. at 1). Ask Gary further asserts that Supermedia's Motion to Strike should be denied because such motions are strongly disfavored. (Id.). In addition, Ask Gary states that Supermedia did not seek a default and did not engage in the required good-faith conference prior to filing its Motion. (Id.).

II. Legal Standard

Rule 12(f) of the Federal Rules of Civil Procedure, provides that upon motion by a party or upon the court's initiative, "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). However, a motion to strike is a drastic remedy disfavored by the courts. Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002). Generally, "a court will not exercise its discretion under the rule to strike a pleading unless the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party." Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla. 1995).

III. Discussion

In its Motion to Strike, Supermedia argues that it would be prejudiced by Ask Gary's untimely pleading, that the twoand-a-half-month delay was unreasonable and that Ask Gary has offered no reason for the delay. (Doc. # 20 at 4-5). Supermedia further argues that Ask Gary "failed to avail itself of the discovery process"*fn2 and "failed to allege any facts to show that it did not have knowledge of the purported misrepresentations underlying its affirmative defenses and counter claim prior to the discovery deadline or that it was diligent in seeking such information before the deadline."

(Id. at 5-6). Finally, Supermedia asserts that Ask Gary acted in bad faith. (Id. at 6).

In its response to the Motion, Ask Gary offers no explanation for its untimely pleading. Instead, Ask Gary attacks Supermedia for "[u]sing an approach that is strongly disfavored under the law . . . even though the parties have long been engaged in meaningful settlement discussions." (Doc. # 27 at 1). Ask Gary focuses on the fact that motions to strike and default judgments are viewed with disfavor by courts. (Id. at 2-3).

Ask Gary further argues that Supermedia's "claim of prejudice due to the passage of the discovery deadline has been rendered moot" by Ask Gary's response on November 7, 2011, to Supermedia's first set of interrogatories and request for production. (Id. at 6). Ask Gary asserts that it did not act unreasonably because the parties have been engaged in ongoing settlement discussions and because Supermedia did not move for default. (Id.). Ask Gary ...

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