United States District Court, D. Colorado
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on "Plaintiff's Motion to Strike GMR's and EMSC's Verified Answer." (Doc. No. 67, filed Sept. 8, 2014.) Defendants Global Medical Response, Inc. ("GMR") and Emergency Medical Services Corp.'s ("EMSC") "Opposition to Plaintiff's Motion to Strike" was filed on September 25, 2014 (Doc. No. 71) and "Plaintiff's Reply in Support of Motion to Strike GMR's and EMSC's Verified Answer" was filed on October 7, 2014 (Doc. No. 74). For the following reasons, Plaintiff's Motion to Strike is DENIED.
Plaintiff seeks to strike GMR and EMSC's Verified Answer to the First Amended Complaint, " (Doc. No. 66, filed Sept. 4, 2014) as untimely. Plaintiff argues that, under Federal Rule of Civil Procedure 12(a)(4), GMR and EMSC's Answer was due within fourteen days after Senior District Judge Block's ruling on their motion to dismiss, which resulted in the transfer of this case from the United States District Court for the Eastern District of New York to this court.
At the outset, the court agrees that CMR and EMSC's Verified Answer is untimely. While Judge Block made his ruling on April 30, 2014, GMR and EMSC did not file their Verified Answer until September 4, 2014.
Nevertheless, Plaintiff has not cited to any statute, procedural rule, case law, or other authority suggesting that the court should strike GMR and EMSC's Verified Answer for that reason alone. While Federal Rule of Civil Procedure 12(f) authorizes the court to strike a pleading, it only applies to pleadings that contain "an insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Federal Rule of Civil Procedure 37(b)(2)(A)(iii) also authorizes the court to strike a pleading, but only for a failure to obey a discovery order. Finally, while at least one decision from this District struck an answer as untimely, it involved an answer filed after default had already been entered against the defendant. See Combined Ins. Co. of Am. v. Glass, No. 14-cv-01458-KMT, 2015 WL 996172 (D. Colo. Mar. 3, 2015). See also Gibson v. Household Int'l, Inc., 151 F.Appx. 529, 530-31 (9th Cir. 2005) (affirming district court's denial of a motion to strike answer where there was no prior entry of default).
Moreover, there is a strong preference for the disposition of litigation on the merits, particularly where there has been no showing of prejudice to the plaintiff. Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990) (affirming district court's denial of a motion for default judgment made at the close of trial, even when the defendant conceded that it failed to file an answer). Thus, when faced with a motion to strike, the court should balance the preference to reach the merits with the prejudice, if any, to the moving party. Holmes v. Newark Pub Schs., No. 13-765 (FSH), 2013 WL 6199190, at *2 (D.N.J. Nov. 27, 2013) (citing Wilson v. King, No. 06-CV-2608, 2010 WL 678102, at *3 (E.D. Pa. Feb. 24, 2010)); cf. Sierra Club v. Tri-State Generation & Transmission Ass'n, Inc., 173 F.R.D. 275, 285 (D. Colo. 1997) (citing 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1380, at 690-92 (2d ed. 1990)) (motions to strike under Rule 12(f) are a generally-disfavored, drastic remedy and ordinarily require a showing of prejudice).
The court declines to strike GMR and EMSC's Verified Answer. Plaintiff has not identified any prejudice resulting from GMR and EMSC's failure to timely answer. Moreover, there can be no doubt that these defendants have continuously and vigorously defended themselves throughout this action. As such, in light of the lack of prejudice to Plaintiff, the progress ...