United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTIONS TO STRIKE DEFENDANTS
JANDREAU'S AND RINGLING'S AFFIRMATIVE
E. SCHREIER UNITED STATES DISTRICT JUDGE.
United States of America, moves to strike the affirmative
defenses made by defendants JoAnn Jandreau and Donna J.
Ringling. Defendants oppose the motions. For the following
reasons, the United States's motions to strike (Dockets
22 and 25) are denied.
facts as alleged in the complaint are:
Arshem died testate on December 24, 1999, as a resident of
Charles Mix County, South Dakota. Docket 1 at 2. Arshem was
survived by three daughters: Donna Ringling, Kathy Standy,
and JoAnn Jandreau. Id. Arshem was survived by at
least one grandson as well: Kory Standy. Id. A
federal estate tax return was filed on or about May 15, 2008,
“reporting a gross estate of $834, 336.00 and a net
estate tax due to the United States of $28, 939.”
Id. “On July 14, 2008, a delegate of the
Secretary of the Treasury made assessments against the Estate
for estate tax, penalties and interest totaling $65, 874.80,
of which $28, 939.00 is estate tax, $13, 746.02 is penalties,
and $23, 189.78 is interest.” Id. at 3. This
action was commenced on January 23, 2017, against all four
defendants to collect the unpaid taxes, penalties and
interest. Jandreau alleges in her answer that on or about
April 29, 2014, all four defendants met with who they
believed to be “a representative of the IRS and were
informed that the United States may not take any action
against Defendants.” Docket 15 at 4. Jandreau also
alleges that an offer to make payment was made to the alleged
IRS representative. Id.
their answers to the lawsuit, Ringling and Jandreau pleaded
the affirmative defenses of estoppel, waiver, and release.
Jandreau also pleaded the affirmative defense of accord and
to strike are governed by Federal Rule of Civil Procedure
12(f), which sets the standard for when a court “may
strike from a pleading an insufficient defense . . . .”
This includes “any redundant, immaterial, impertinent,
or scandalous matter” that the court may strike either
on a party's motion, or independently on its own.
Fed.R.Civ.P. 12(f). While district courts have “liberal
discretion in ruling under Rule 12(f)[, ]” the Eighth
Circuit has recognized that “[m]otions to strike . . .
are viewed with disfavor and infrequently granted.”
Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063
(8th Cir. 2000) (quoting Lunsford v. United States,
570 F.2d 221, 229 (8th Cir. 1977)).
Jandreau and Ringling overlap substantially on their
affirmative defenses, so both defendants' defenses will
be addressed concurrently. Dockets 15 and 10.
Motion to strike
12(f) motion must be filed within twenty-one days after a
pleading has been served. Fed.R.Civ.P. 12(f)(2). Ringling
pleaded affirmative defenses in her response to the complaint
on March 22, 2017. Docket 10 at 2. The United States filed
its Rule 12(f) motion on May 12, 2017-fifty-one days after
the pleading was served. Docket 25-1.
the United States's motion to strike Ringling's
affirmative defenses was untimely, the Eighth Circuit has
stated that because a district court has the authority under
Rule 12(f) to act “upon the court's initiative at
any time[, ]” the district court has the authority to
“ ‘consider untimely motions to strike and to
grant them if doing so seems proper . . . .' ”
United States v. Lot 65 Pine Meadow, 976 F.2d 1155,
1157 (8th Cir. 1992) (quoting 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1380, at 652-54 (2d ed. 1990)). For that reason, this
court will consider the United States's motion to strike.