Starr Indemnity & Liability Company v. Continental Cement Company, LLC et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Strike [# 17 -1] and Motion to Dismiss [#17-2] are DENIED. IT IS FURTHER ORDERED that defendants shall file their answer and any counter claims to plaintiffs' amended complaint within twenty (20) days of the date of this Order. IT IS FURTHER ORDERED that plaintiffs motion to add party [# 20 ] is granted. Signed by Honorable Rodney W. Sippel on 10/13/11. (ARL)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STARR INDEMNITY & LIABILITY CO.,
et al.,
Plaintiffs and Counter-Defendants,
v.
CONTINENTAL CEMENT COMPANY,
L.L.C., et al.,
Defendants and Counter-Plaintiffs.
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Case No. 4:11CV809 RWS
MEMORANDUM AND ORDER
This matter is before me on defendants’ motion to strike or dismiss plaintiffs’ complaint.
Starr Indemnity & Liability Company and New York Marine & General Insurance Company
insured a cement barge, the Mark Twain. The Mark Twain was docked at Continental Cement
Company’s St. Louis, Missouri dock on February 7, 2011 when it sank. Summit Materials has
an ownership interest in Continental.
Starr originally filed this action seeking a declaration that it is not required to make any
payments to defendants under the provisions of the policy. Starr did not designate its complaint
as arising in admiralty. Defendants answered the complaint and filed a counterclaim for breach
of the insurance contract. Defendants made a demand for a jury trial on both their counterclaim
and Starr’s declaratory judgment claim. Defendants also named New York Marine as a thirdparty defendant. Starr and New York Marine, now a plaintiff, then filed an amended complaint
designating their declaratory judgment claim in admiralty.1 Defendants now seek to either strike
plaintiffs’ admiralty designation or dismiss their claim for declaratory relief. For the reasons
stated below, I will deny both motions.
Discussion
Defendants first argue that I should strike plaintiffs’ amended complaint because it was
untimely filed and would deprive defendants of a jury trial. A motion to strike is governed by
Rule 12 (f) of the Federal Rules of Civil Procedure, which provides that a “court may strike from
a pleading an insufficient defense or redundant, immaterial, or scandalous matter.” Motions to
strike are viewed with disfavor and infrequently granted. Lunsford v. United States, 570 F.2d
221, 229 (8th Cir. 1977).
A party may amend its complaint as a matter of right under Federal Rules of Civil
Procedure Rule 15, which states that:
A party may amend its pleadings once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1). Federal Rule of Civil Procedure 7 (a) defines a pleading as either a
complaint, an answer to a complaint, an answer to counterclaim designated as a counterclaim, an
1
Rule 9(h) of the Federal Rules of Civil Procedure states:
If a claim for relief is within admiralty or maritime jurisdiction and
also within the court’s subject-matter jurisdiction on some other
ground, the pleading may designate the claim as an admiralty or
maritime claim . . . .
Fed. R. Civ. P. 9(h)(1).
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answer to a cross claim, a third-party complaint, an answer to a third-party complaint, or, if the
court orders one, a reply to an answer. Fed. R. Civ. P. 7(a).
Defendants contend that plaintiffs’ amended complaint, which designates this case as one
arising in admiralty, should be stricken because it was filed after they made a demand for a jury
trial in their answer and counterclaim.2 This argument fails because the amended complaint was
timely filed as a matter of right within 21 days after plaintiffs were served with the defendants’
answer and counterclaim. Fed. R. Civ. P. 15(a)(1)(B). Defendants may still demand a jury trial
on their counterclaims, which I will require defendants to replead in their answer to the amended
complaint so that the record is clear. Whether I may ultimately be required to sever some claims
or issues for a jury trial is not properly before me at this time and is not a basis for denying
plaintiffs their right to file an amended complaint. The motion to strike will be denied.
Defendants also argue that I should dismiss the plaintiffs’ amended complaint for
declaratory relief because it constitutes a race to the courthouse and there is an adequate remedy
at law. Courts may dismiss a declaratory judgment action if the party acted in bad faith by filing
the suit or filed it as a race to the courthouse. Northwest Airlines, Inc. v. American Airlines, Inc.,
989 F.2d 1002, 1005 (8th Cir. 1985), cited in Commercial Union Ins. v. Torbaty, 955 F.Supp.
1162, 1163-1164 (E.D. Mo. 1997). To decide whether a declaratory judgment action constitutes
a race to the courthouse, the Eighth Circuit Court of Appeals directs me to decide whether the
declaratory judgment action was filed to circumvent the first-filed rule. Id. The first-filed rule
applies when an action is filed in either two separate federal cases or a federal and a state case.
2
“The seventh amendment does not require jury trials in cases based on claims in
admiralty.” Koch Fuels, Inc. V. Cargo of 13,000 Barrels of No. 2 Oil, More or Less, In Rem, 704
F.2d 1038, 1041 (8th Cir. 1983).
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir. 1982),
quoted in Northwest Airlines, 989 F.2d at 1005. Courts can also dismiss a declaratory judgment
action if there are parallel state court proceedings. Wilton v. Seven Falls Co., 515 U.S. 277
(1995).
Defendants argue that plaintiffs’ amended complaint should be dismissed because it
either constitutes a race to the courthouse or is “superfluous.” Defendants’s race to the
courthouse argument fails because this is the only pending case. See e.g. Commercial Union
Ins., 955 F.Supp. at 1163; Eveready Battery Company v. L.P.I. Consumer Products, Inc., 464
F.Supp.2d 887, 891 (E.D. Mo. 2006). There is also no evidence the declaratory judgment action
was filed in “bad faith.” The same reasoning defeats defendants’ argument that the case is
superfluous or duplicative. Finally, defendants’ request for a stay, which they abandon in their
reply brief, is summarily denied. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Strike [#17-1] and Motion to
Dismiss [#17-2] are DENIED.
IT IS FURTHER ORDERED that defendants shall file their answer and any counter
claims to plaintiffs’ amended complaint within twenty (20) days of the date of this Order.
IT IS FURTHER ORDERED that plaintiffs’ motion to add party [#20] is granted.
_______________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dates this 13th day of October, 2011.
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