United States District Court, D. South Carolina, Orangeburg Division
matter is before the court pursuant to Plaintiff Melanie
Breland's (“Plaintiff”) Motion to Strike and
Motion for Default Judgment. (ECF No. 9.) Defendants Ricky
Long and Miller Transport, LLC oppose Plaintiff's motion and
request the court to deny the Motion to Strike and the Motion
for Default Judgment. (ECF No. 14.) For the reasons set forth
below, the court DENIES Plaintiff's
Motion to Strike and Motion for Default Judgment (ECF No. 9).
court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1332. Plaintiff is a resident and citizen of the State
of South Carolina. (ECF No. 1 at 1.) Defendant Long is a
resident and citizen of the State of Illinois, and Defendant
Miller Transport, LLC is organized and incorporated in the
State of Mississippi and has its principal place of business
in the State of Mississippi. Id. The amount in
controversy in this matter exceeds $75, 000.00 as Plaintiff
alleges that she has incurred over $169, 000.00 in medical
expenses, suffered serious personal and permanent injuries,
lost wages, loss of enjoyment of life, and future medical
expenses as a result of this motor vehicle accident. (ECF No.
1 at 2.)
FACTUAL AND PROCEDURAL BACKGROUND
October 25, 2016, Plaintiff filed a complaint for a jury
trial in the Orangeburg Court of Common Pleas. (ECF No. 1-1.)
This action arises out of a motor vehicle accident that
occurred in Orangeburg County, South Carolina, on October 31,
November 4, 2016, Defendant Long was served with the Summons
and Complaint via the South Carolina Department of Motor
Vehicles pursuant to South Carolina's statute governing
service on a non-resident motorist or motor carrier, codified
in S.C. Code Ann. §§ 15-9-350 through 15-9-380.
(ECF No. 8-2.) Defendant Long asserts that Plaintiff did not
serve the documents according to the terms of the statutes,
and as a result, service was not effected until the date
Defendant Long “otherwise” received the
complaint. (ECF No. 13 at 2.) The court found that service
was not effected until Defendant Long first obtained a copy
of the Complaint from the Orangeburg Clerk of Court on
December 15, 2016, because Plaintiff did not adhere to the
statutory requirements for service of process. (ECF No. 33.)
December 16, 2016, Defendant Long filed an Answer in state
court. (ECF No. 14-7.) On January 9, 2017, Defendant Long
filed an amended Answer in this court. (ECF No. 2.) On
February 8, 2017, Plaintiff filed a Motion to Strike and a
Motion for Default Judgment, asserting Defendant Long failed
to timely answer within thirty (30) days as required by the
South Carolina Rules of Civil Procedure. S.C. R. Civ. P.
12(a); ECF No. 9.
Rule of Civil Procedure 12(f) permits a district court, on
motion of a party, to “strike from a pleading an
insufficient defense.” Rule 12(f) motions are generally
viewed with disfavor “because striking a portion of a
pleading is a drastic remedy and because it is often sought
by the movant simply as a dilatory tactic.” Waste
Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th
55(a) of the Federal Rules of Civil Procedure authorizes the
entry of a default judgment when a defendant fails “to
plead or otherwise defend” in accordance with the
Rules. Although the clear policy of the Rules is to encourage
dispositions of claims on their merits, trial judges are
vested with discretion, which must be liberally exercised, in
entering such judgments and in providing relief therefrom.
See U.S. v. Moradi, 673 F.2d 725, 727 (4th Cir.
1982); see also Fed. R. Civ. P. 55(c), 60(b).
dispute in this matter is whether Defendant Long's Answer
was timely. Under Rule 12(a) of the South Carolina Rules of
Civil Procedure, a defendant must serve his answer within 30
days after the service of the complaint upon him. Plaintiff
incorrectly asserts that Defendant Long's Answer was not
filed until January 9, 2017. (ECF No. 9-1.) The document
filed on January 9, 2017, was Defendant Long's amended
Answer. Defendant Long's original Answer was filed in
state court on December 16, 2016 (ECF No. 14-7), less than 30
days after he was served with the Complaint. Having reviewed
the record, the court does not find any basis to grant
Plaintiff's Motion for Default Judgment.
Plaintiff's Motion to Strike is untimely. Rule 12(f)(2)
of the Federal Rules of Civil Procedure governs motions to
strike and provides that a court may strike a response on a
motion made “within 21 days” after the moving
party is served with the pleading. Defendant Long served his
initial Answer on December 16, 2016 (ECF No. 14-7), and an
amended Answer on January 9, 2017 (ECF No. 2). Thus, the
deadline to file a motion to strike Defendant Long's
original Answer was January 6, 2017, and the deadline for a
motion to strike the amended Answer was January 31, 2017.
However, Plaintiff did not file her Motion to Strike until
February 8, 2017. (ECF No. 9.) As a result, Plaintiffs Motion
to Strike is untimely as to both Defendant's original
Answer and the amended Answer.