Hi-Tech Electric, Inc. of Delaware v. T&B Construction and Electrical Services, Inc., No. 2:2015cv03034 - Document 113 (E.D. La. 2017)
Court Description: ORDER & REASONS denying as moot 93 Motion to Strike paragraphs 159, 234, 263, 265, and 328, as well as the title of T&B's fourth cause of action and the section title preceding paragraph 245. The Court DENIES the remainder of the motion. Signed by Judge Sarah S. Vance on 5/15/2017. (mmm)
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Hi-Tech Electric, Inc. of Delaware v. T&B Construction and Electrical Services, Inc. Doc. 113 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA HI-TECH ELECTRIC, INC. OF DELAWARE VERSUS CIVIL ACTION NO. 15-30 34 T&B CONSTRUCTION AND ELECTRICAL SERVICES, INC. SECTION “R” (4) ORD ER AN D REASON S Before the Court is plaintiff Hi-Tech Electric, Inc. of Delaware’s (HTE) m otion to strike portions of defendant T&B Construction and Electrical Services, Inc.’s (T&B) counterclaim pursuant to Federal Rule of Civil Procedure 12(f).1 For the following reasons, the Court denies plaintiff’s m otion. I. BACKGROU N D This diversity lawsuit arises out of a dispute between HTE and T&B over a construction project.2 HTE and T&B signed a Team ing Agreem ent in August 20 11, to cooperatively bid for electrical work for the Southeast Veterans Healthcare System Replacem ent Hospital project (VA Project) in 1 R. Doc. 99. For a m ore in-depth review of the facts of this case, see the Court’s order on HTE’s m otion to dism iss, R. Doc. 112. 2 Dockets.Justia.com New Orleans. T&B was awarded a contract to perform work for the VA Project, and subcontracted a portion of that work to HTE. On J uly 29, 20 15, HTE sued T&B alleging breach of contract as well as claim s under the Louisiana Prom pt Paym ent Statute, La. Stat. Ann. § 9:2784.3 On Novem ber 1, 20 16, T&B filed a counterclaim against HTE, asserting nine causes of action.4 HTE now m oves to strike portions of T&B’s counterclaim , asserting that the counterclaim contains statem ents that are “im m aterial, im pertinent, prejudicial, inflam m atory and/ or scandalous.”5 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(f) allows the court to strike “from any pleading any insufficient defense or any redundant, im m aterial, im pertinent, or scandalous m atter.” Fed. R. Civ. P. 12(f). A m otion to strike under Rule 12(f) “is a drastic rem edy to be resorted to only when required for the purposes of justice.” Augustus v. Bd. of Pub. Instruction of Escam bia Cnty ., Fla., 30 6 F.2d 862, 868 (5th Cir. 1962); see also Kaiser Alum inum & Chem . Sales, Inc. v. Avondale Shipy ards, Inc., 677 F.2d 10 45, 10 57 (5th Cir. 1982) (“[M]otions to strike a defense are generally disfavored, . . .”); Sy nergy 3 4 5 R. Doc. 1. R. Doc. 90 . R. Doc. 93-1 at 3. 2 Mgm t., LLC v. Lego Juris A/ S, No. 0 7-5892, 20 0 8 WL 4758634, at *1 (E.D. La. Oct. 24, 20 0 8 ) (“Motions to strike m ade under Rule 12(f) are viewed with disfavor by the federal courts, and are infrequently granted.”). A m otion to strike should be granted only when “the allegations are prejudicial to the defendant or im m aterial to the lawsuit.” Johnson v. Harvey , No. 96-3438, 1998 WL 596745, at *7 (E.D. La. Sept. 8, 1998) (citation om itted). Im m ateriality is established by showing that the challenged allegations “can have no possible bearing upon the subject m atter of the litigation.” Bay ou Fleet P’ship v. St. Charles Parish, No. 10 -1557, 20 11 WL 2680 686, at *5 (E.D. La. J ul. 8 , 20 11) (citations om itted). Disputed questions of fact cannot be decided on a m otion to strike. Gonzales v. State Farm Mut. Auto. Ins., No. 10 -30 41, 20 11 WL 260 70 96, at *5 (E.D. La. J uly 1, 20 11). III. D ISCU SSION HTE’s m otion specifically takes aim at paragraphs 20 , 21, 24, 27, 28, 45, 46, 48-57, 10 0 , 10 9, 159, 20 1, 234, 263, 265, 298, and 328 of T&B’s counterclaim . HTE also seeks to strike the title of T&B’s fourth cause of action and the section title preceding paragraph 245. At the outset, the Court notes that it granted HTE’s m otion to dism iss T&B’s first, fourth, sixth, 3 eighth, and ninth causes of action,6 which m oots m uch of HTE’s m otion to strike. Therefore, HTE’s m otion to strike paragraphs 159, 234, 263, 265, and 328, as well as the title of T&B’s fourth cause of action and the section title preceding paragraph 245 is denied as m oot. Given the dem anding standard for Rule 12(f) m otions to strike, the Court denies the rem ainder of HTE’s m otion. Som e of what HTE seeks to strike, for exam ple the words “failed m iserably” and “boasted” in paragraph 20 , or “underserved credit” and “absurd” in paragraph 28, are clearly not sufficiently scandalous or prejudicial to warrant the extraordinary rem edy of striking the words from T&B’s counterclaim . Other allegations that HTE seeks to strike, including alleged violations of federal law and regulations or that HTE illegally defrauded governm ental entities, sim ilarly do not warrant granting HTE’s m otion to strike. The Court cannot say that these allegations “can have no possible bearing upon the subject m atter of the litigation,” Bay ou Fleet P’ship, 20 11 WL 2680 686, at *5, especially given that T&B alleges that these violations in part form the basis of HTE’s alleged breach of contract and breach of fiduciary duties. And while T&B would be better served by drafting its com plaint without overly harsh words like “hoodwinked” and “fraudsters,” the purpose of a m otion to strike is not tone 6 R. Doc. 112. 4 policing and the Court will not grant HTE’s m otion on that basis. See Abene v. Jay bar, LLC, 80 2 F. Supp. 2d 716, 723 (E.D. La. 20 11) (“‘Even when technically appropriate and well-founded,’ m otions to strike are not to be granted ‘in the absence of a showing of prejudice to the m oving party.’”) (quoting Wright & Miller, Federal Practice and Procedure § 1381 (3d ed. 20 0 4) (internal m odifications om itted). Further, the requisite prejudice necessary to grant a m otion to strike does not refer to the offensiveness of the allegations but on their practical effects. Courts that have granted m otions to strike based on prejudice look to factors like delay, whether the challenged statem ents will unnecessarily prolong or prevent discovery, or increase the parties’ expenses. See, e.g., E.E.O.C. v. Bay Ridge Toy ota, Inc., 327 F. Supp. 2d 167, 174 (E.D.N.Y. 20 0 4); CitiMortgage, Inc. v. Just Mortg., Inc., No. 0 9-190 9, 20 13 WL 6538680 , at *7 (E.D. Mo. Dec. 13, 20 13); see also Wright & Miller, Federal Practice and Procedure § 1381 n.34 (collecting cases). HTE has not m ade that showing here. Because HTE has not shown that the challenged allegations prejudice HTE, and because any im pertinent allegations contained in T&B’s counterclaim could be related to the subject m atter of the litigation, justice 5 does not require striking the allegations and the rem ainder of HTE’s m otion is denied. IV. CON CLU SION For the foregoing reasons, the Court DENIES AS MOOT HTE’s m otion to strike paragraphs 159, 234, 263, 265, and 328, as well as the title of T&B’s fourth cause of action and the section title preceding paragraph 245. The Court DENIES the rem ainder of HTE’s m otion. 15th New Orleans, Louisiana, this _ _ _ _ _ day of February, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 6
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