IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN F. ZIMMERMAN AND :

 and MARY ZIMMERMAN, his :

wife, :

 : No. 4:CV-05-202 

 Plaintiffs :

 :

 v. : Complaint filed 1/28/05 

 :

KAREN H. KING : (Judge Muir)

 :

Defendant :

 ORDER

 May 16, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The above-captioned case was filed as the result of

Defendant’s motor vehicle collision with the rear end of

Plaintiffs’ motor vehicle. The case is presently on the June,

2006, trial list. A pretrial conference was held on May 1, 2006,

at 11:15 a.m., at which time counsel for Defendant advised the

court that the Defendant was not contesting liability and that

the only issue for trial was the amount of damages Plaintiffs

should be awarded to compensate them for the injury they

sustained as the result of the automobile accident. 

Pending before the court is Plaintiffs’ motion to

strike Defendant’s answer and a brief in support thereof. A

brief in opposition was filed on May 10, 2006. A reply brief is

due on May 30, 2006. We will not wait for a reply brief and will

grant the motion to strike for the reasons outlined below. 

This case was filed on January 28, 2005, and Defendant

was served with the complaint on March 14, 2005. Counsel entered

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an appearance for the Defendant on March 21, 2005. After

Defendant failed to file an answer to the complaint within 20

days of service, Plaintiffs’ counsel on May 26, 2005, sent

correspondence to Defendant’s counsel requesting that Defendant

file an answer. No answer was filed in response to that

correspondence. 

On April 25, 2006, Plaintiffs filed a pretrial

memorandum in which they noted that Defendant had failed to file

an answer to the complaint. On April 25, 2006, immediately after

receiving Plaintiffs’ pretrial memorandum Defendant filed an

answer to the complaint. Defendants’ answer was filed

approximately 11 months after Plaintiffs’ counsel requested by

way of correspondence that Defendant file an answer. Prior to

filing the untimely answer, Defendant did not seek leave of court

to do so. Although counsel for Defendant stated at the pretrial

conference that Defendant conceded liability, the answer filed by

Defendant appears to deny that this court has jurisdiction (see

paragraph 4 of the complaint and the answer thereto) and certain

aspects of liability (see paragraphs 9 and 19 and the answers

thereto).

Plaintiffs in the complaint claim that Defendant was

negligent. In order to establish such a claim, Plaintiffs must

prove that Defendant was negligent, i.e, Defendant breached a

duty of care and that Plaintiffs suffered injury. Injury is an

essential element of the liability phase. It appears that

Defendant is denying that Defendant breached a duty of care

(paragraph 19, subparagraphs (a) through (i) of the complaint and

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the answer thereto) and that Plaintiffs suffered injury (see,

e.g., paragraph 20 of the complaint and the answer thereto). 

There is no justification for Defendant’s untimely filing of the

answer to the complaint and we will strike it from the record. 

Although we are striking the answer from the record,

Defendant on May 10, 2006, filed a motion to file the answer nunc

pro tunc and a three paragraph brief in support. A brief in

opposition is due on May 30, 2006. If a brief in opposition is

filed, Plaintiffs’ reply brief will be due on June 16, 2006. 

The brief filed by the Defendant is inadequate. In

light of the inadequate briefing, we will require Defendant to

file a supplemental supporting brief and we will continue this

case to the July, 2006, trial list. The supplemental brief

should address the issue of whether as a result of Defendant’s

failure to file a timely answer to the complaint we should deem

the factual assertions set forth in the complaint as admitted by

Defendant. If we would deem those assertions admitted, it appears

that the amount of damages which would adequately compensate the

Plaintiffs would still be a contested issue. The amount of

damages is the issue that we understood to be contested and the

subject of the jury trial. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Plaintiffs’ motion to strike Defendant’s answer

(Doc. 39) is granted as set forth below.

2. Defendants’ answer filed on April 25, 2006, without

leave of court, is stricken from the record.

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3. On or before May 26, 2006, Defendant shall file a

supplemental brief in support of the motion to file the answer

nunc pro tunc. Subsequent briefing shall be in accordance with

the Local Rules of Court.

4. This case is placed on the July, 2006, trial list.

 

 s/Malcolm Muir 

 MUIR, U.S. District Judge

MM:gs

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