BOJ of WNC, LLC v. Houston Casualty Company

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION BOJ of WNC, LLC d/b/a BOJANGLES ) FAMOUS CHICKEN N BISCUITS, ) ) Plaintiff, ) ) v. ) CV 122-124 ) HOUSTON CASUALTY COMPANY; ) WESTFIELD NATIONAL INSURANCE ) COMPANY; and ENCOVA MUTUAL ) INSURANCE GROUP, INC., ) ) Defendants. ) _________ O R D E R _________ For the reasons set forth below, the Court DENIES as untimely Plaintiff’s motions to strike affirmative defenses, (doc. nos. 35, 36, 37), and GRANTS Defendant Westfield’s motion for leave to file an amended answer. (Doc. no. 43.) Federal Rule of Civil Procedure 12(f) provides that a Court may strike an insufficient defense itself or upon motion of a party filed within 21 days after the pleading is served. Fed. R. Civ. P. 12(f). A court has discretion to consider an untimely motion to strike. Blige v. M/V Geechee Girl, 180 F. Supp. 2d 1389 , 1358-59 (S.D. Ga. 2001); Lunsford v. U.S., 570 F.2d 221 , 227 n. 11 (8th Cir. 1977) (“We note that even though the plaintiffs’ motion to strike was not made within the time limits established by [Rule] 12(f), the District Court did have authority to consider the plaintiffs’ motion as it may strike material from the pleadings on its own initiative”). Plaintiff filed its motions to strike several months after the deadline expired, and the Court will not consider the untimely motions. See, e.g., Whitesell Corp. v. Electrolux Homeproducts, Inc., 2020 WL 7380911 , at *1 (S.D. Ga. Dec. 15, 2020) (holding court would not exercise discretion to strike affirmative defenses because “‘Plaintiff’s motion to strike [was] woefully out of time”). The Court further notes motions to strike are generally disfavored. Brown v. Joiner Int’, Inc., 523 F. Supp. 333, 336 (S.D. Ga. 1981). To the extent Defendant Westfield may still wish to amend its answer to address the criticisms in Plaintiff's motion to strike, the Court grants leave to amend for this purpose. SO ORDERED this 14th day of March, 2023, at Augusta, Georgia. fh. k bo BRIAN K ERPS UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA