Cowart v. Mediterranean Shipping Company (USA) Inc., No. 2:2009cv03572 - Document 53 (E.D. La. 2010)
Court Description: ORDER AND REASONS denying 42 Motion to Strike 35 Answer to Amended Complaint. Signed by Judge Mary Ann Vial Lemmon. (ecm, )
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Cowart v. Mediterranean Shipping Company (USA) Inc. Doc. 53 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA OLIVER COWART CIVIL ACTION VERSUS NO: 09-3572 MEDITERRANEAN SHIPPING COMPANY (USA) INC. SECTION: "S" (2) ORDER AND REASONS IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike Defenses of Defendant, Columbus Stainless LTD (Doc. #42), is DENIED. BACKGROUND Plaintiff, Oliver Cowart, filed this civil action against Mediterranean Shipping Company (USA) Inc. and Columbus Stainless LTD seeking damages for injuries he sustained when a truck that he was driving flipped onto it side because the cargo in the shipping container on the truck shifted. Plaintiff alleges that Mediterranean and Columbus were negligent in loading the container. On August 16, 2010, Columbus filed an answer that included affirmative defenses. On October 14, 2010, plaintiff filed a motion to strike the following defenses asserted by Columbus: (1) lack of personal jurisdiction over Columbus; (2) improper venue; (3) insufficient process under Dockets.Justia.com Rules 12(b)(4) and 4(f)(3) of the Federal Rules of Civil Procedure; (4) insufficient service of process on Columbus under Rules 12(b)(5) and 4(f)(3) of the Federal Rules of Civil Procedure; and, (5) failure to state a claim or cause of action against Columbus. ANALYSIS Rule 12(f) of the Federal Rules of Civil Procedure provides that the court may strike an insufficient defense “on a motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Columbus electronically filed its answer on August 16, 2010, and plaintiff was immediately served via electronic mail. Plaintiff filed his motion to strike the defense more than 21 days later on October 14, 2010. Therefore, plaintiff’s motion to strike is untimely, and is DENIED.1 CONCLUSION IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike Defenses of Defendant, Columbus Stainless LTD (Doc. #42), is DENIED. 9th New Orleans, Louisiana, this _____ day of November, 2010. ____________________________________ MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE 1 This denial is without prejudice to the court’s review of the legal sufficiency of the defenses upon a proper motion filed at the appropriate time. 2
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