United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Plaintiff Kiet Le
to strike, pursuant to Federal Rule of Civil Procedure 12(f),
affirmative defenses filed by Defendant Sentinel Insurance
Company, Ltd. For the reasons set forth below, this motion
will be denied.
complaint, Plaintiff alleges that on May 20, 2014, Defendant
issued an insurance policy to Plaintiff, which was in force
on June 25, 2014, when Plaintiff's real property
sustained water damage to the roof and damage to the
building. Plaintiff contends that he made a claim under the
policy, and on April 28, 2015, Defendant denied the claim.
Plaintiff seeks damages under Missouri law for (1) vexatious
refusal to pay and (2) breach of contract.
Defendant's answer, Defendant asserts several affirmative
defenses. At issue in this motion are the following
affirmative defenses: (1) Both counts of Plaintiff's
complaint fail to state a claim for which relief can be
granted, (2) Plaintiff failed to mitigate its damages, (3)
Defendant is entitled to a credit or off-set for all sums
Plaintiff has recovered on account of the damages alleged in
the complaint, (4) Plaintiff's claims are barred and/or
limited by the terms of Defendant's policy, (5) Coverage
of Plaintiff's damages, if any, are limited to the
coverage limits available pursuant to the express terms of
the policy, and (11) Defendant reserves the right to further
amend and add additional defenses that may become known
during the course of discovery.
argues that affirmative defenses (1) through (5) and (11)
were improperly pled because they are “bare bone legal
conclusions, ” insufficient to protect Plaintiff
against high costs of discovery and litigation costs.
Plaintiff also contends that affirmative defense (1) is not a
proper affirmative defense, but rather is an argument
properly asserted in a motion to dismiss for a defect in
Plaintiff's prima facie case; and that affirmative
defense (11) is merely a reservation of rights to raise an
affirmative defense in the future.
Defendant's amended answer, filed contemporaneously with
Defendant's opposition to Plaintiff's motion to
strike, Defendant includes additional facts in support of
affirmative defenses (2), (4), and (5). With respect to
affirmative defense (2), Defendant adds that Plaintiff failed
to mitigate its damages because Plaintiff failed to use all
reasonable means to preserve property from further damage at
or after the time of the alleged loss. With respect to
affirmative defenses (4) and (5), Defendant identifies the
specific sections of the policy that Defendant claims bar or
limit Plaintiff's claims and damages. Defendant omits
affirmative defenses (3) and (11) of Defendant's original
Defendant's opposition to Plaintiff's motion to
strike, Defendant argues that affirmative defense (1) is
properly pled because Federal Rule of Civil Procedure
12(h)(2)(A) expressly permits raising a failure to state a
claim in pleadings allowed under Rule 7(a), and because there
is no prejudice to discovery or litigation as a result of
allowing this defense in Defendant's answer. Defendant
further argues that Plaintiff's motion is moot as to
affirmative defenses (2), (4), and (5) because Defendant pled
additional facts in its amended answer with regard to those
affirmative defenses, and moot as to the two affirmative
defenses Defendant does not include in its amended answer.
Plaintiff has not filed a reply.
12(f) provides that a court “may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent or scandalous matter.” Fed.R.Civ.P. 12(f).
The party filing the motion to strike bears the burden of
proof. Simms v. Chase Student Loan Serv., LLC, No.
4:08-CV-1480 ERW, 2009 WL 943552, at *2 (E.D. Mo. April 6,
2009). Because the rule is permissive, courts enjoy
“liberal discretion” to strike pleadings under
Rule 12(f), but “striking a party's pleading is an
extreme measure.” Stanbury Law Firm v. IRS,
221 F.3d 1059, 1063 (8th Cir. 2000).
“[m]otions to strike under Fed.R.Civ.P. 12(f) are
viewed with disfavor and are infrequently granted.”
Lunsford v. United States, 570 F.2d 221, 229 (8th
Cir. 1977). Courts generally agree that “motions to
strike should be denied unless the challenged allegations
have no possible relation or logical connection to the
subject matter of the controversy and may cause some form of
significant prejudice to one or more of the parties to the
action.” Atl. Recording Corp. v. Raleigh, No.
4:06-CV-1708 CEJ, 2009 WL 1543458, at *2 (E.D. Mo. June 2,
2009) (internal citations omitted).
Defendant argues, Rule 12(h)(2)(A) expressly allows failures
to state a claim to be raised in an answer. See
CitiMortgage, Inc. v. Just Mortgage, Inc., No.
4:09-CV-1909 DDN, 2013 WL 6538680, *8 (E.D. Mo. Dec. 13,
2013) (“[T]he court perceives no prejudicial effect of
burdensome discovery or litigating unnecessary issues by
allowing failure to state a claim to remain in
defendants' [answers].”). As a result, Plaintiffs
motion to strike affirmative defense (1) of Defendant's
answer is denied.
Court agrees with Defendants that affirmative defenses (2)
through (5) and (11) of Defendant's original answer are
moot because these affirmative defenses were either omitted
or pled with ...