United States District Court, E.D. North Carolina, Southern Division
E. Gates United States Magistrate Judge
case comes before the court on the motion (D.E. 13) by
plaintiff Aramark Uniform & Career Apparel, LLC
("plaintiff) to strike the answer filed by defendant
David A. Hernandez ("defendant"), who is proceeding
pro se. For the reasons set forth below, the motion will be
November and 2 November 2016, defendant filed two documents
(D.E. 8, 9), which appeared to be defendant's answer to
the complaint (D.E. 1). By order entered 1 December 2016
(D.E. 10), the court informed defendant of several
deficiencies in his filings. Specifically, defendant was
informed that his purported answers lacked signatures, as
well as his address, e- mail address, and telephone number,
as required by Rule 11(a) of the Federal Rules of Civil
Procedure. 1 Dec. 2016 Ord. 1. The court also
informed defendant that his purported answers failed to
include a certificate of service, as required by Rule
5(d)(1). Id. at 2. The court permitted defendant
until 19 December 2016 to correct the identified
December 2016, defendant filed an amended answer (D.E. 11).
In it, he corrected each of the deficiencies identified by
the court. In addition, though, he revised his responses to
allegations in the complaint and added a number of
affirmative defenses. Plaintiff argues that the changes
reflected in the amended answer exceed those permitted by the
1 December 2016 Order and that defendant required leave
before filing the amended answer. Plaintiff therefore seeks
an order both striking the purported answer and requiring
defendant to file an answer that reflects only those changes
permitted in the 1 December 2016 Order.
12(f) provides that "the court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter."
Fed.R.Civ.P. 12(f). A motion to strike defenses is "a
drastic remedy ... and is infrequently granted."
First Fin. Sav. Bank v. American Bankers Ins. Co.,
783 F.Supp. 963, 966 (E.D. N.C. 1991); see also Morrisroe
v. Goldsboro Milling Co., 884 F.Supp. 192, 194 (E.D.
N.C. 1994) ("Motions to strike a defense as legally
insufficient are generally disfavored and are usually denied
unless there is showing of prejudice to the moving
party.") (citing 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1381,
at 421-22 (3d ed. 2004)). The burden of proof on a motion to
strike lies with the moving party. Haught v. Louis
Berkman. LLC, 377 F.Supp.2d 543, 548 (N.D. W.Va. 2005).
addition, where, as here, more than 21 days have passed after
service of an initial pleading, Rule 15(a)(2) permits a party
to amend a challenged pleading only with written consent or
leave of court. Fed.R.Civ.P. 15(a)(2). The rule further
provides that the court "should freely give leave when
justice so requires." Id. Rule 15 is a
"liberal rule [that] gives effect to the federal policy
in favor of resolving cases on their merits instead of
disposing of them on technicalities." Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006); Mown
Props. Mgmt., Inc. v. Transcom, Ins. Co., 271 F.3d 164,
170 (4th Cir. 2001) (holding that Rule 15 should be construed
liberally "so that claims can be adjudicated on the
merits"). Leave to amend is to be granted in the absence
of "bad faith, undue prejudice to the opposing party, or
futility of amendment." United States v.
Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (internal
as noted, plaintiff contends that defendant's amended
answer impermissibly included substantive amendments to the
prior answers and thereby exceeded the scope of permission
granted in the 1 December 2016 Order. The court agrees that
defendant should have sought leave of court before altering
his answer beyond correction of the enumerated deficiencies.
The court finds, however, that the lack of demonstrated bad
faith, undue prejudice to plaintiff, or futility of the
amendments made warrants denial of plaintiffs motion to
strike. Moreover, at this point, it would be inefficient to
strike the amended answer and essentially require defendant
to file a motion to amend his answer that the record already
shows is meritorious.
court emphasizes that it is not basing its ruling on
plaintiffs pro se status. Rather, its decision is grounded on
the unique circumstances presented, including in particular
the liberal policy of amendment of pleadings under Rule 15.
The court again reminds defendant that his pro se status does
not excuse him from compliance with the Federal Rules of
Civil Procedure, the Local Rules of Civil Procedure, the
court's orders, and any other provisions of law
applicable to this case.
reasons set forth, plaintiffs motion to strike (D.E. 13) is
DENIED. Defendant's answer (D.E. 11) shall be deemed a
permitted filing. SO ORDERED, this 11th day of August 2017.