United States District Court, E.D. Pennsylvania, July 1, 2019

PENNSYLVANIA — In a case previously covered by the Asbestos Case Tracker, the defendant, Viad Corporation, filed an answer to the plaintiff’s complaint on February 22, 2019, including a successor in interest defense, an assertion that was raised for the first time in their reply to the plaintiff’s response to their motion for summary judgement and not decided on by the court at that time. The plaintiff filed a motion to strike Viad’s answer, and Viad filed a reply.

“The issue in this case is whether the untimely filing of a responsive pleading, particularly an answer to a complaint, is a sufficient ground to strike a pleading pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. The answer in the instant matter was filed over three years late.”

The plaintiff argues that “by not striking the defendant’s untimely answer and the successor in interest defense, it would unnecessarily protract litigation thereby increasing time and costs to the plaintiff.” The plaintiff further asserted that “if the court denies the motion to strike, this court would in effect be endorsing the defendant’s disregard for the requirements of the Federal Rules of Civil Procedure.”

The defendant argued that the plaintiff was put on notice of its successor in interest defense because it was noted in its notice of removal. Furthermore, while it did not file a timely answer in the instant litigation, “the defendant claims that because it had successfully raised the defense in other asbestos cases, the plaintiff had notice it would be raised in this litigation.”

The court, with respect to untimely filings, has “balanced the degree of prejudice suffered by the moving party with the desire to resolve cases on the merits rather than by default.”

Ultimately, the court held that “there is excusable neglect for the defendant filing its answer and successor in interest defense late. Moreover, in keeping with the strong policy against granting motions to strike, and in accordance with the principle that cases should be decided on the merits, permitting the answer and successor in interest defense to stand is appropriate here.”

Read the case decision here.