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Continental Casualty Co. v. Duyzend

United States District Court, W.D. Washington, Seattle

February 5, 2014

CONTINENTAL CASUALTY COMPANY, Plaintiff,
v.
HENRI F. DUYZEND et al., Defendants.

ORDER ON PLAINTIFF'S MOTIONS TO STRIKE AFFIRMATIVE DEFENSES, FOR DEFAULT, TO STRIKE DR. DUYZEND'S ANSWER, AND TO SUPPLEMENT THE RECORD

MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on Plaintiff's Motion to Strike Affirmative Defenses from the Cox Defendants' Answer (Dkt. No. 15), Plaintiff's Motion for Default against Defendants Dr. and Mrs. Duyzend (Dkt. No. 27), Plaintiff's Motion to Strike Dr. Duyzend's Answer (Dkt. No. 31), and Plaintiff's Motion to Supplement the Record (Dkt. No. 47) with respect to the three pending motions. Having considered the Motions, Defendants' Responses, Plaintiff's Replies, and all related papers, the Court hereby orders:

(1) Plaintiff's Motion to Supplement the Record is GRANTED;
(2) Plaintiff's Motion to Strike Dr. Duyzend's Answer is DENIED;
(3) Plaintiff's Motion for Default is GRANTED in part and DENIED in part; and
(4) Plaintiff's Motion to Strike Affirmative Defenses is MOOT in part and DENIED in part.

Background

Plaintiff Continental Casualty filed this interpleader action seeking to determine how to distribute the limited funds remaining under an insurance policy issued to Defendant Dr. Duyzend, a retired dentist, after the Cox Defendants achieved a malpractice judgment against him in excess of that amount. (Dkt. No. 1.) It also sought assorted declaratory relief, including an "expedited" declaratory judgment that once the funds are distributed, Continental "otherwise has no further liability or obligation, either in contract or tort, to Dr. Duyzend, the Cox claimants [...] or any other claimant with respect to any claim relating to or arising under the Policy." (Id. at 18.)

Defendants Dr. and Mrs. Duyzend were traveling outside of the United States around the time Continental filed the complaint. (Duyzend Decl., Dkt. No. 36 at 2.) Rather than attempt international service under FRCP 4(f) or send the waiver form to them directly, on August 26 Continental contacted an attorney, Greg Harper, who informed them he was authorized to accept a waiver of service form on Defendants' behalf but stressed that he was not acting as the Defendants' attorney in this matter. (Defs' Reply to Pl's Mot. Strike Answer., Dkt. No. 40, Ex. 1 at 2.) He did not state that he was authorized to accept service itself. Cf. Fed.R.Civ.P. 4(e)(2)(C). After receiving the waiver form, Mr. Harper forwarded it to the Duyzends in Europe. (Harper Decl., Dkt. No. 35 at 2.) On August 28, Mr. Harper returned the executed waiver form to Continental. (Id.)

On October 28 the Cox Defendants, who had in the meantime acquired Dr. Duyzend's claims and defenses against Continental, filed Dr. Duyzend's Answer to the Complaint. (Dkt. No. 28.)

The parties have been engaged in spirited motions practice with respect to these initial pleadings. This Court has already denied the Cox Defendants' Motion to Dismiss or Stay on abstention grounds. (Dkt. No. 46.) With respect to the pending motions, Plaintiff first asks the Court to consider two October 28 emails (obtained via third-party discovery on December 26) between Mr. Wampold, attorney for the Cox Defendants, and Mr. Harper, relating to the timing of Dr. Duyzend's forthcoming answer. Plaintiff also moves to strike that Answer because it was filed after October 25, 2013-that is, more than sixty dates after counsel for Plaintiff contacted Mr. Harper with a waiver of service request and he reached out to the Duyzends. (Dkt. No. 31.) Plaintiff further asks the Court to enter default against Dr. and Mrs. Duyzend regarding the allegedly untimely Answer. (Dkt. No. 27.) And with respect to the Cox Defendant's own timely Answer (Dkt. No. 14), Plaintiff wants the Court to strike each of the Defendants' affirmative defenses. (Dkt. No. 15.)

Meanwhile, the Cox Defendants brought two actions against Continental in state court, each of which has since been removed to this Court: a garnishment action and a suit alleging breach of contract, bad faith, violation of the Insurance Fair Conduct Act, violation of the Consumer Protection Act, and negligence. (See Case No. C13-01608, Dkt. No. 1-1; Case No. C13-02288, Dkt. No. 1-1.)

Analysis

I. Motion to ...


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