Virginia Lawyers Weekly VA Lawyers Weekly
Where the court ordered a man to remove counts that had no statutory basis or that spoke to remedies that did not constitute a cause of action, and he failed to do so, the court struck counts titled “Spoliation of Evidence,” “Aggravation of Wrongs, Punitive Damages,” “Claim for Attorney’s and Expert’s Fees” and “Demand for Jury” because they were not independent causes of action.
Background
On Aug. 23, 2022, Cody S. Mayhew filed a nine-count complaint against multiple defendants. On Dec. 7, 2022, the court held an initial pretrial conference in this case. From the bench, the court ordered Mayhew’s counsel to cure the complaint by identifying what statutes supported each count. By extension, the court also ordered Mayhew’s counsel to remove counts that had no statutory basis or that spoke to remedies that did not constitute a cause of action.
On Dec. 21, 2022, Mayhew filed an amended complaint. Defendants have filed a motion pursuant to Fed. R. Civ. P. 12(e) and 12(f). Incongruently, defendants also filed an answer contemporaneous to its motion.
More definite statement
Federal Rule of Civil Procedure 12(e) allows a party to move for a more definite statement. Defendants filed their answer on the same day that the motion was filed. Because defendants have readily filed an answer, they cannot also claim that the amended complaint is “so vague and ambiguous” that they cannot reasonably be required to frame a responsive pleading, or that responding would “prejudice Defendants because it requires them to provide legal defenses to causes of action that do not actually exist and are a distraction.”
The Fourth Circuit has made clear that “a motion for more definite statement will only be granted if the complaint is so vague and ambiguous that the defendant cannot frame a responsive pleading.” Defendants have framed a responsive pleading, so the court cannot grant their motion for a more definite statement.
Motion to strike
Defendants, in the alternative, move to strike certain counts of the amended complaint pursuant to Rule 12(f). The court will strike Count Three, titled “Spoliation of Evidence,” because spoliation is not a cause of action. Next, the court will strike Count Seven, titled “Aggravation of Wrongs, Punitive Damages” and Count Eight, titled “Claim for Attorney’s and Expert’s Fees” because they are remedies or post-trial awards, not causes of action. Finally, the court will strike Count Nine, titled “Demand for Jury,” because it is a procedural request, not a cause of action.
Mayhew v. Harris, Case No. 3:22-cv-568, Feb. 17, 2023. EDVA at Richmond (Lauck). VLW 023-3-082. 9 pp.
