United States District Court, E.D. Texas, Tyler Division
MEMORANDUM OPINION AND ORDER
LOVE UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's motion to strike Defendants'
answer pursuant to Federal Rule of Civil Procedure 12(f).
(Doc. No. 35.) Defendants Joseph Hood, Harold Rapsilver, C.W.
Williams, and the City of Wells Police Department
(collectively “Defendants”) have filed a
response. (Doc. No. 38.) Upon consideration of the
parties' arguments, the Court DENIES
Plaintiff's motion (Doc. No. 35).
17, 2019, Plaintiff filed this action against Defendants
complaining of numerous constitutional violations and torts
arising from a traffic stop in the City of Wells, Texas.
(Doc. No. 1.) Thereafter, the Court ordered Plaintiff to
amend her complaint to comply with Rule 8 of the Federal
Rules of Civil Procedure. (Doc. No. 6.) On June 24, 2019,
Plaintiff filed her amended complaint and the Court granted
Plaintiff leave to proceed in forma pauperis. (Doc.
Nos. 10, 11.) Plaintiff then requested that the Court order
the U.S. Marshal Service to serve Defendants and the Court
granted that request. (Doc. Nos. 13, 15.) Summons were
returned executed with service as to Defendants Joseph Hood,
C.W. Williams, and the City of Wells Police Department on
July 15, 2019. (Doc. Nos. 19, 20, 23.) Answers as to those
Defendants were due on August 5, 2019. See id;
Fed.R.Civ.P. 12(a)(1)(A)(i). Summons was returned as to
Defendant Harold Rapsilver on August 12, 2019, with service
on August 7, 2019, and an answer due on August 28, 2019.
(Doc. No. 29.) On August 8, 2019, Plaintiff filed a request
for Clerk's entry of default as to Defendants Hood,
Williams, and the City of Wells Police Department. (Doc. No.
24.) However, Plaintiff failed to attach the required
affidavit in support of her request and was therefore
instructed by the Clerk to refile her request with the proper
attachments. Thereafter, on August 15, 2019, all Defendants
filed an answer in this case. (Doc. No. 30.) Plaintiff then
renewed her requests for default (Doc. Nos. 31, 32, 33), and
filed the instant motion to strike Defendant's answer
(Doc. No. 35). Defendants filed a response to the motion
(Doc. No. 38), along with a motion for leave to file their
answer out of time (Doc. No. 39).
to Federal Rule of Civil Procedure 12(f), “[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). Motions to strike are
generally disfavored. U.S. v. Conley, 689 F.3d 365
(5th Cir. 2012). Courts possess considerable discretion in
disposing of a Rule 12(f) motion to strike redundant,
impertinent, immaterial, or scandalous matter. Id.
If there is any question as to whether the allegations may be
relevant to the action, courts err on the side of permitting
the allegations to stand. Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure §1382 (3d ed.).
noted above, Rule 12(f) provides a mechanism to strike
pleadings where they are “redundant, immaterial,
impertinent, or [contain] scandalous matter.”
Fed.R.Civ.P. 12(f). Here, Plaintiff does not contend that
Defendants' allegations are redundant, immaterial,
impertinent, or contain any scandalous matter. Rather,
Plaintiff wishes to strike Defendants' answer as
untimely. (Doc. No. 35.) Plaintiff cites to DirectTV v.
Young to support the contention that a court may strike
an answer under Rule 12(f) for being untimely. See
Doc. No. 35, citing 195 F.App'x. 212, 215 (5th Cir.
2006). DirectTV differs both substantively and
procedurally from the instant action.
DirectTV, the court determined that defendant's
failure to file an answer or otherwise respond to plaintiff
was willful given his repeated failures to
communicate with plaintiff's counsel, respond to
settlement demands, respond to notices that plaintiff would
proceed with default, seek an attorney, ask for more time,
file an answer, or respond to plaintiff's request for
default. DirectTV, 195 F.App'x. at 215. Here,
three of the four defendants filed their answer a mere 10
days late. At this time, there was no live request
for default pending on the docket. As discussed above,
Plaintiff's original request was stricken by the Clerk
for failure to contain the proper documentation, and
Plaintiff's renewed requests were not filed until a day
after Defendants filed their answer. (Doc. Nos. 30, 31, 32,
33.) Thus, unlike DirectTV, there had not been
multiple failures to respond and there was no pending request
for default or motion for default judgment that Defendants
also failed to respond to. Indeed, since filing an answer,
Defendants have filed a response to the instant motion to
strike, requested leave of court, and have otherwise been
responsive in this action. (Doc. Nos. 38, 39.) Moreover,
unlike DirectTV where defendant did not file an
answer or otherwise respond until nearly 10 months after an
answer was due, here, three of the four Defendants filed an
answer only 10 days late, and one Defendant's answer was
timely. (Doc. No. 30.)
rather than exhibiting willful neglect or refusal to
participate in this action, it appears that Defendants'
answer was slightly untimely due to a miscommunication and
late retention of counsel. (Doc. No. 39.) While Defendants
could have initially sought leave of Court with an
explanation for why their answer should be allowed out of
time, Defendants have now done so and are otherwise
responsive in this action. (Doc. No. 39.) For these reasons,
the Court does not find that the provisions of 12(f) warrant
striking the answer in this instance. Moreover, the Court
finds, for the same reasons, that the interests of justice do
not merit the extreme remedy of default under these
circumstances. See Sun Bank of Ocala v. Pelican Homestead
and Savings Ass'n., 874 F.2d 274, 276 (5th Cir.
1989). (“[d]efault judgments are a drastic remedy, not
favored by the Federal Rules and resorted to by courts only
in extreme situations.”).
reasons set forth herein, Plaintiff's motion to strike
pursuant to Fed.R.Civ.P. 12(f) (Doc. No. 35) is
DENIED. Defendants' motion for leave
(Doc. No. 39) is GRANTED. The live answer in
this action shall be Docket No. 30.