United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AN ORDER
B. RUSSELL, SENIOR JUDGE.
matter is before the Court upon a motion by Plaintiff,
Michael McDorman, to strike defendants' motion to dismiss
Count VII and individual defendants as untimely. [DN 29].
Defendants D&G Properties, DGW Investments, Inc., Bruce
Grisham, Daniel Williams, RB Grisham, and Jacob Stauffer have
responded, [DN 32], and Plaintiff has replied. [DN 34]. Fully
briefed, Plaintiff's motion is ripe for review and for
the following reasons it is DENIED.
March 13, 2018, Plaintiff filed his complaint against
Defendants. [DN 1]. Defendants filed a pre-answer motion to
dismiss for improper venue pursuant to Rule 12(b)(3) on May
31, 2018. [DN 16]. The Court denied Defendants' motion to
dismiss for improper venue on November 21, 2018. [DN 23]. On
December 5, 2018, Defendants D&G Properties, Inc. and DGW
Investments, Inc. (“Companies”) filed their
answer (“Answer”) to Plaintiff's complaint.
[DN 24]. Defendants Bruce Grisham, Daniel Williams, RB
Grisham, and Jacob Stauffer (“Individual
Defendants”) have not yet filed their answer to
Plaintiff's complaint. The Companies and Individual
Defendants filed a motion to dismiss for failure to state a
claim (“Second Motion”) contemporaneously with
the Companies' Answer. [DN 25]. This motion to dismiss is
incorporated by reference into the Companies' Answer. [DN
24 at 18].
now moves the Court to strike Defendants' Second Motion
as untimely. [DN 29]. Plaintiff argues that, because the
Individual Defendants have not yet answered Plaintiff's
complaint, the Second Motion is prohibited in the Sixth
Circuit as a second successive pre-answer motion under Rule
12. Plaintiff also argues that the Second Motion cannot be
considered a motion for judgment on the pleadings under Rule
12(c) because the pleadings have not yet closed. For the
following reasons, Plaintiff's motion to strike [DN 29]
12(f) allows a court to “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
A court may strike portions of the pleading acting on its own
initiative or “on a motion made by a party ... before
responding to the pleading.” Id. Motions to
strike under Rule 12(f) are addressed within the sound
discretion of the Court, although they are generally
disfavored. Ameriwood Indus. Intern. Corp. v. Arthur Andersen
& Co., 961 F.Supp. 1078, 1083 (W.D.Mich.1997) (citing
Fed. Sav. & Loan Ins. Corp. v. Burdette, 696 F.Supp.
1183, 1186 (E.D.Tenn.1988); FDIC v. Butcher, 660 F.Supp.
1274, 1277 (E.D.Tenn.1987); FDIC v. Berry, 659 F.Supp. 1475,
1479 (E.D.Tenn.1987)). Striking a pleading is a drastic
remedy to be resorted to only when required for the purposes
of justice. Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir.1953). A motion to strike
should be granted only where there is a clear showing that
the challenged defense has no bearing on the subject matter
and that permitting the matter to stand would prejudice the
party. Ameriwood, 1078 F.Supp. at 1083.
Federal Rule of Civil Procedure 12(h)(2), the defense of
failure to state a claim upon which relief can be granted may
be raised in any pleading allowed under Rule 7(a), by a
motion under Rule 12(c), or at trial. Fed.R.Civ.P.
12(h)(2)(A)-(C). This is true even if a party chooses not to
include the defense in its pre-responsive pleading Rule 12(b)
motion. In other words, a party does not waive its defense of
failure to state a claim upon which relief can be granted
simply because the defense was omitted from the party's
Rule 12(b) motion.
case, Defendants filed a motion to dismiss for improper venue
pursuant to Rule 12(b)(3) on May 31, 2018. [DN 16].
Defendants chose not to include their defense of failure to
state a claim upon which relief can be granted in their
pre-responsive pleading motion. On November 21, 2018, this
Court denied Defendants' Rule 12(b)(3) motion. [DN 23].
In compliance with Rule 12(a)(4), the Companies filed their
Answer to Plaintiff's complaint on December 5, 2018. [DN
24]. The Individual Defendants have not yet filed their
answer. Defendants filed their Second Motion
contemporaneously with the Companies' Answer. [DN 25]. In
their answer, the Companies incorporate by reference the
contemporaneously filed Second Motion. [DN 24 at 18].
Court previously noted, a party may raise the defense of
failure to state a claim upon which relief can be granted in
any pleading allowed or ordered under Rule 7(a). Fed.R.Civ.P.
12(h)(2)(A). An answer to a complaint is a pleading allowed
under Rule 7(a). Fed.R.Civ.P. 7(a)(2). Therefore, the
Companies properly raised their defense of failure to state a
claim upon which relief can be granted by raising it in their
Answer to Plaintiff's complaint. See English v. Dyke, 23
F.3d 1086, 1091 (6th Cir. 1994) (“Rules 12(g) &
(h)(2), however, provide an exception for a defense based on
failure to state a claim. Such a claim may be brought in a
subsequent pleading, motion for judgment on the pleadings, or
at trial on the merits.”) (emphasis added).
argues that Defendants' Second Motion to Dismiss is
untimely. Plaintiff asserts that, because the Individual
Defendants have not yet filed their answer, the Second Motion
is a second successive pre-answer motion under Rule 12.
Plaintiff further argues that second successive pre-answer
motions under Rule 12 are prohibited in the Sixth Circuit.
See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 701 n.
3 (6th Cir. 1978) (explaining that Rule 12(g)
“contemplates the presentation of an omnibus pre-answer
motion in which defendant advances every available Rule 12
defense and objection he may have that is assertable by
motion. . . Any defense that is available at the time of the
original motion but is not included, may not be the basis of
a second pre-answer motion.”) Defendants, on the other
hand, argue that it is within the Court's discretion to
consider the Second Motion on the merits. However, it is
unnecessary for the Court to decide whether Sixth Circuit
precedent grants discretion in this instance because the
Court interprets the Second Motion to Dismiss to be part of
the Companies' Answer. Therefore, the Second Motion to
Dismiss is timely pursuant to Rule 12(h)(2).
Individual Defendants' decision not to file their answer
contemporaneously with the Companies' Answer creates some
procedural ambiguity in this case. Because of this procedural
ambiguity, the Court finds Asiago v. Chegg, Inc. to be
persuasive. No. 3:15-CV-438-DJH-DW, 2017 U.S. Dist. LEXIS
7897, 2017 WL 319231 (W.D.Ky. Jan. 20, 2017). In Asiago, an
employee of a temporary services agency sued United Parcel
Service, Inc. (“UPS”) and Chegg, Inc.
(“Chegg”) for negligence, gross negligence,
respondeat superior, and failure to properly hire, train, and
supervise. Id. at *2. Although only UPS had answered
the employee's complaint, both defendants filed a motion
to dismiss.Id. at *3. Because UPS' Rule
12(b)(6) motion was filed after its answer but before the
pleadings had closed, the motion was both untimely as a rule
12(b)(6) motion and premature as a Rule 12(c) motion for
judgment on the pleadings. Id. The Asiago court
noted this procedural ambiguity and explained “the
Court may consider an untimely 12(b)(6) motion (or premature
motion for judgment on the pleadings) if the defense was
raised in the ...