Opinion
C. A. 3:23-2087-MGL-PJG
12-08-2023
USAA Casualty Insurance Company, Plaintiff, v. Robyn Barker, Defendant. Robyn Barker, Counter Claimant, USAA Casualty Insurance Company, Counter Defendant.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.
Plaintiff USAA Casualty Insurance Company (“USAA”) filed this action for a declaratory judgment and injunctive relief arising out of an automobile insurance dispute. Defendant Robyn Barker, proceeding without counsel, filed an answer and counterclaim. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on USAA's motion to strike in part Barker's answer and counterclaim (ECF No. 13) and Barker's motion to dismiss USAA's Complaint (ECF No. 40). Barker did not file a response to USAA's motion to strike, but USAA filed a response in opposition to Barker's motion to dismiss (ECF No. 41). Also before the court is Barker's motion to seal and motion for a status conference. (ECF No. 37.) Having reviewed the record presented and the applicable law, the court concludes that USAA's motion-which the court construes as a partial motion to dismiss- should be granted and Barker's motion to dismiss denied. The court also denies Barker's motion to seal and motion for a status conference.
BACKGROUND
The following allegations are taken as true for purposes of resolving the parties' motions. USAA was the insurer of Barker's 2016 McLaren, which was damaged in an April 2022 car accident. The parties could not agree on the amount of loss on the McLaren, so Barker invoked the policy's appraisal provision. The appraiser determined that the McLaren was a total loss. USAA attempted to tender a check to Barker for the full amount determined by the appraiser less the amount paid by the at-fault driver's liability carrier in exchange for the salvage title and the vehicle, but Barker refused to transfer the title or relinquish the vehicle. USAA then filed this lawsuit seeking a declaration that the amount it tendered to Barker is all USAA owes under the policy and an injunction granting USAA the salvage title and possession of the McLaren. Barker filed an answer and counterclaim, apparently asserting claims for damages, fees and costs, and declaratory and injunctive relief under causes of action for gross negligence, bad faith, and a violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310.
DISCUSSION
A. USAA's Motion to Strike
USAA moves pursuant to Federal Rule of Civil Procedure 12(f) to strike Barker's counterclaim for attorney's fees and her claim pursuant to the Magnuson-Moss Warranty Act. The court concludes that a motion to strike is not appropriate in this situation. However, construing this argument instead as seeking dismissal pursuant to Rule 12(b)(6), the court concludes the motion should be granted.
Under Rule 12(f), the court may strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” from the pleadings. Fed.R.Civ.P. 12(f). The purpose of a Rule 12(f) motion to strike is to reinforce the requirements of Rule 8 that pleadings be simple, concise, and direct; its purpose is not to secure dismissal of all or a part of claims. 5C Charles Alan Wright & Arthur R. Miller, Fed. Practice & Procedure § 1380 (3d ed. 2021). Striking a party's pleading is an extreme measure that is viewed with disfavor. Cty. of Dorchester, SC v. AT&T Corp., 407 F.Supp.3d 561, 568 (D.S.C. 2019) (quoting Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000)). Accordingly, the motion should only be granted if the movant can show that it would be prejudiced by the allegation's presence in the pleading. See Hardy v. Lewis Gale Med. Ctr., LLC, 377 F.Supp.3d 596, 605 (W.D. Va. 2019); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1380 (3d ed. Apr. 2023).
Here, USAA makes no such argument. Instead, USAA argues that Barker's claims for attorney's fees and relief under the Magnuson-Moss Warrant Act are meritless on their face. Those arguments are more appropriately addressed in the context of Rule 12(b)(6), which examine the legal sufficiency of the facts alleged on the face of the complaint, Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Therefore, the court construes USAA's motion as seeking relief under 12(b)(6).
Moreover, Barker failed to respond to USAA's motion. Therefore, the court concludes that she has abandoned her claims for attorney's fees and for a violation of the Magnuson-Moss Warrant Act. See Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 783 (D. Md. 2010) (stating that a party who fails to address arguments in opposition to a motion to dismiss abandons their claim); see also Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”); Sawyers v. United Parcel Serv., Inc., C/A No. 1:18CV1037, 2019 WL 4305771, at *3 (M.D. N.C. Sept. 11, 2019) (collecting cases showing that “[t]his district and others within the Fourth Circuit agree that failing to respond to an argument constitutes an abandonment of a claim”). Therefore, the court concludes that Barker's claims for attorney's fees and for a violation of the Magnuson-Moss Warrant Act should be dismissed.
B. Barker's Motion to Dismiss
Barker moves to dismiss USAA's Complaint “on the grounds of new evidence that directly impacts the validity of the Plaintiff's claim.” (ECF No. 40 at 1.) Specifically, Barker argues that USAA fails to state a claim upon which relief can be granted because its claim is predicated on the existence of an agreement of which USAA has not produced any documentary evidence. (Id. at 6.)
Initially, the court concludes that Barker's motion is untimely. Generally, Rule 12(b) requires a motion to dismiss based on failure to state a claim be made before filing a responsive pleading. See Fed.R.Civ.P. 12(b)(6) (“A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.”); but see 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1361 n.7 (3d ed. Apr. 2023) (collecting cases finding that courts have the discretion to consider untimely Rule 12(b)(6) motions in some circumstances). Barker's motion to dismiss was filed on November 9, 2023 (ECF No. 40), more than five months after she filed her Answer to the Complaint (ECF No. 5). Therefore, the motion is untimely under Rule 12(b).
However, Barker's motion is more properly characterized as one for summary judgment because it challenges USAA's ability to produce evidence to support its claim. See generally Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (stating that Federal Rule of Civil Procedure 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case”). But, under the court's amended scheduling order, a motion for summary judgment would be premature at this time. (ECF No. 33.) Additionally, while Barker's motion to dismiss is untimely, she has not necessarily waived her argument that USAA's Complaint fails to state a claim upon which relief can be granted. See generally Fed.R.Civ.P. 12(g). Therefore, the court concludes that (1) Barker's motion to dismiss should be denied as untimely; (2) the motion should not be converted to one for summary judgment because it is premature; (3) and the motion should be denied without prejudice to raise the argument in a timely motion.
C. Barker's Miscellaneous Motions
Barker also filed a motion to seal the entire case because of the sensitivity of the case to her business and financial interests and emotions. (ECF No. 37). The motion is denied. Generally, court proceedings are presumptively open to the public and a party seeking to seal court documents carries a heavy burden of overcoming that presumption. See Doe v. Pub. Citizen, 749 F.3d 246, 265-66 (4th Cir. 2014). This case involves an insurance dispute that does not on its face appear to involve any compelling interests that could overcome the presumption of public access, and Barker's reference to “sensitive” business relationships does not provide enough information for the court to find otherwise. (ECF No. 37 at 1.) Moreover, Barker has not followed the mandatory procedure outlined in the court's local rules for filing documents under seal. See Local Civil Rule 5.03 (D.S.C.) (“Failure to obtain prior approval as required by this rule shall result in summary denial of any request or attempt to seal filed documents.”).
In the same document, Barker also requests a meeting with the assigned magistrate judge and counsel for USAA. (ECF No. 37.) Barker indicates that counsel for USAA refuses to “engage in communication” with her. (Id. at 1.) In response, USAA indicates counsel would “welcome a status conference,” (ECF No. 38 at 4), and in reply, Barker indicates “a mediation session” would be more beneficial than a status conference (ECF No. 39 at 1). The motion is denied because the parties do not explain why there is a need for a status conference. To the extent the parties would like to engage in mediation, the parties should submit a request pursuant to Federal Rule of Civil Procedure 16(a)(5) to the court's ADR Program Coordinator as explained in the court's amended scheduling order. (ECF No. 33.)
RECOMMENDATION
Based on the foregoing, the court recommends that USAA's partial motion to dismiss be granted (ECF No. 13) and Barker's motion to dismiss be denied (ECF No. 40). It is
ORDERED that Barker's motion to seal and motion for a status conference be denied.
IT IS SO ORDERED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).