United States District Court, S.D. Florida
NICHOLAS A. ZIEGLER, Plaintiff,
M/V INTERMISSION, a 1998 85.6' Burger built aluminum hulled motor yacht, U.S. Coast Guard Documented, Official Number 1066533, her engines, tackle, apparel, appurtenances, personal watercraft and tender, in rem, et. al. Defendants.
ORDER ON MOTION TO STRIKE
BLOOM, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon
Defendant/Cross-Defendant Beers Group., Inc.'s
(“Beers Group”) Motion to Strike Cross-Claim of
Defendants/Cross-Plaintiffs LAH Yachts, LLC (“LAH
Yachts”) and Hamid Hashemi (“Hashemi”)
(collectively “Cross-Plaintiffs”), ECF No. ,
(the “Motion”). The Court has carefully reviewed
the Motion, the applicable law, the parties' briefs, and
is otherwise fully advised. For the reasons that follow, the
Motion is denied.
Nicholas Ziegler (“Plaintiff”), commenced this
action by filing claims against LAH Yachts and Hashemi for
unseaworthiness, negligence under the Jones Act for failure
to provide a reasonably safe place to work and failure to
provide prompt, proper, and adequate medical care.
See ECF No. . In addition, Plaintiff alleged
claims for maintenance and cure against LAH Yachts, Hashemi
and the M/Y Intermission and a state law negligence claim
against Beers Group. Id. These claims arise from two
incidents that occurred while Plaintiff was a First Mate on
board the M/Y Intermission, resulting in personal injuries to
him. Id. Both the Cross-claim and the Motion deal
only with the second incident; therefore, the Court limits
its discussion and analysis to that incident.
to the Complaint, on September 8, 2016, the Captain of the
M/Y Intermission hired Beers Group to repair the vessel's
air conditioning system. Id. Beers Group sent two of
its technicians to remove the necessary equipment for repairs
and the Captain ordered Plaintiff, as the First Mate, to
assist them. Id. While removing the air chiller from
the vessel's engine room to a hand truck on the adjacent
dock, one of the technicians let go of the chiller, causing
it to slip out of Plaintiff's grasp and injuring his
right hand and middle finger. Id. Plaintiff alleges
his medical bills remain unpaid and that he was discharged
from his employment on the vessel prior to recovering for the
second injury. Id.
the filing of the Complaint, on May 8, 2017, LAH Yachts and
Hashemi filed their respective Answers and Affirmative
Defenses. See ECF Nos.  and . Two months
later, on July 21, 2017, they jointly filed a Cross-Claim
against Beers Group without leave of Court in which
they asserted claims for common-law indemnity (Count I) and
contribution (Count II). Beers Group thereafter moved to
strike the Cross-Claim on procedural and substantive grounds.
See ECF No. . Cross-Plaintiffs' Response and
Beers Group's Reply timely followed. See ECF
Nos.  and . The Motion is now ripe for review.
12(f) permits a court to “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter, ” granting courts
broad discretion in making this determination. Fed.R.Civ.P.
12(f); see also Morrison v. Exec. Aircraft Refinishing,
Inc., 434 F.Supp.2d 1314, 1318-19 (S.D. Fla. 2005);
Williams v. Eckerd Family Youth Alt., 908
F.Supp. 908, 910 (M.D. Fla. 1995). Under Rule 12(f),
“[a] motion to strike will usually be denied unless the
allegations have no possible relation to the controversy and
may cause prejudice to one of the parties.” Harty
v. SRA/Palm Trails Plaza, LLC, 755 F.Supp.2d 1215, 1218
(S.D. Fla. 2010) (internal quotation and citation omitted);
see also BB In Tech. Co. v. JAF, LLC, 242 F.R.D.
632, 641 (S.D. Fla. 2007) (same); Home Mgmt. Sols., Inc.
v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834,
at *1 (S.D. Fla. Aug. 21, 2007) (same); Action Nissan,
Inc. v. Hyundai Motor Am., 617 F.Supp.2d 1177, 1187
(M.D. Fla. 2008) (same).
have broad discretion in considering a motion to strike under
Rule 12(f). See, e.g., Sakolsky v. Rubin Memorial Chapel,
LLC, No. 07-80354-CIV, 2007 WL 3197530, at *2 (S.D. Fla.
Oct. 26, 2007). However, Rule 12(f) motions to strike are
considered drastic, granted sparingly and often disfavored.
See Pujals ex rel. El Rey De Los Habanos, Inc. v.
Garcia, 777 F.Supp.2d 1322, 1327 (S.D. Fla. 2011);
Thompson v. Kindred Nursing Ctrs. E., LLC, 211
F.Supp.2d 1345, 1348 (M.D. Fla. 2002) (quoting Augustus
v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306
F.2d 862, 868 (5th Cir. 1962)). Through this lens, the Court
considers Beers Group's Motion.
Motion, Beers Group initially sought to strike the
Cross-Claim for both procedural and substantive reasons. From
a procedural standpoint, Beers Group argues the Cross-Claim
should be stricken because it was filed without leave of
Court. ECF No.  at 2. Throughout the course of the
parties' briefs, however, their focus shifted from
whether the Cross-Claim should be stricken for a procedural
deficiency to whether leave to amend to correct such a
deficiency should be granted. As a result, Beers Group's
position evolved from arguing that Cross-Plaintiffs could,
under no circumstances, state a claim for indemnity and
contribution in this “otherwise  straightforward
personal injury case” to arguing it would be futile to
allow an amendment for indemnity and contribution as to
to the procedural question of whether the Cross-Claim should
be stricken for failure to seek leave of Court, both parties
agree that Cross-Plaintiffs failed to follow the procedure
for amending pleadings. Federal Rule of Civil Procedure 15
permits an amendment to a pleading “once as a matter of
course within 21 days after serving it.” Fed.R.Civ.P.
15(a)(1)(A). Because they filed their Answer on May 8, 2017,
Cross-Plaintiffs could have filed an amended pleading
containing a cross-claim without leave of Court prior to May
29, 2017. However, they did not file their Cross-Claim within
this timeframe. Instead, they waited until the last day to
amend the pleadings under the Court's Scheduling Order,
July 21, 2017, and then filed their Cross-Claim without
obtaining leave of Court. See ECF No. . Thus,
Beers Groups is correct in stating that the Cross-Claim was
improperly filed pursuant to Rule 15(a)(1)(A).
in their Response to the Motion, Cross-Plaintiffs concede the
error and belatedly seek leave of Court to retroactively cure
this procedural deficiency. See ECF No.  at 3-5.
“The grant or the denial of an opportunity to amend is
within the discretion of the district court.” Foman
v. Davis, 371 U.S. 178, 182 (1962). Leave to amend
should be given freely “in the absence of any apparent
or declared reason - such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Cadence
Bank, N.A. v. 6503 U.S. Highway 301, LLC, No.
8:13-cv-840-T-33TGW, 2013 WL 12157897 (M.D. Fla. Oct. 7,
2013) (quoting Foman, 371 U.S. at 182). In its
Reply, Beers Group does not argue the existence of undue
delay, bad faith, dilatory motive or repeated failure to cure
prior deficiencies. Instead, Beers Group argues futility of
before the Court may reach the issue of futility and whether
leave to amend should be granted, it must first determine
whether good cause exists to consider the belated request
pursuant to Federal Rule of Civil Procedure 16(b)(4). The
Rule provides that a scheduling order “may be modified
only for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). This Court has the inherent authority
to control and manage its own docket to allow the expeditious
disposition of cases. Cadence Bank, 2013 WL 12157897
at *3 (quoting Voter Verified, Inc. v. Premier Elec.
Sols., Inc., No. 6:09-cv-1968-ORL19-KRS, 2010 WL
1049793, at *2 (M.D. Fla. Mar. 22, 2010)). Here, the
allowance of the Cross-Claim will promote judicial efficiency
by having matters of indemnity and contribution decided in
the main action. Given that Beers Group was on notice of the
Cross-Claim prior to the deadline to amend the pleadings,
there is little to no prejudice by the belated amendment.
Moreover, Beers Group does not raise prejudice as a concern.
As such, the Court finds that good cause exists ...