UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

WANKE CASCADE DISTRIBUTION LTD., Case No.: 3:13-CV-768-AC 

an Oregon corporation,

 FINDINGS AND 

Plaintiff, RECOMMENDATION

v.

FORBO FLOORING, INC., a Delaware

corporation, 

Defendant.

___________________________________

ACOSTA, Magistrate Judge:

Introduction

Defendant Forbo Flooring, Inc. (“Forbo”), failed to timely answer the Second Amended

Complaint (“Complaint”) filed by plaintiff Wanke Cascade Distribution, Ltd. (“Wanke”). Wanke

now moves to strike specific allegations in Forbo’s Answer to Second Amended Complaint

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(“Answer”) as untimely and prejudicial, and Forbo seeks retroactive leave to file the Answer. 

The court finds Forbo’s failure to file the Answer in a timely manner was due to excusable

neglect and did not unduly prejudice Wanke. Also, Forbo has not alleged a new defense in the

Answer, the new factual allegations are not immaterial or impertinent, and Wanke will not be unduly

prejudiced by such allegations. Accordingly, Forbo’s motion to enlarge time should be granted, and

Wanke’s motion to strike should be granted with regard to Wanke’s breach of its contract with Forbo

and denied in all other respects.

Background

Wanke filed this action in state court on April 10, 2013. Forbo removed the action to this

court on May 7, 2013, and filed a motion to dismiss the following week. On December 10, 2013,

this court granted Forbo’s motion with regard to Wanke’s claims for promissory estoppel and

fraudulent misrepresentation and denied the motion on the remaining claims. Wanke Cascade Dist.

Ltd. v. Forbo Flooring, Inc., No. 3:13-CV-00768-AC, 2013 WL 6493106 (Dec. 10, 2103).1 Forbo

filed its answer to the original complaint on January 22, 2014. Thereafter, the parties engaged in

vigorous discovery, seeking the court’s assistance on no less than six occasions to date and holding

at least one contentious deposition in the court’s jury room. 

On November 3, 2014, Wanke sought leave to amend the original complaint to add or clarify

factual allegations supporting Wanke’s First, Second, and Third Claims for relief based on

depositions and discovery, and to delete the claims previously dismissed by the court. The court

granted the motion, which was unopposed, and Wanke filed the Complaint on November 4, 2014. 

1Wanke initially requested leave to amend to cure the deficiencies in the dismissed claims

but on January 7, 2014, advised the court it would proceed only on the remaining claims.

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At Forbo’s request, on December 9, 2014, Wanke produced a witness to testify about the new

allegations in the Complaint. (Asai Decl. dated Dec. 12, 2014 (“Asai Decl.”) ¶ 4.)

Forbo filed the Answer on December 12, 2014, without seeking leave of court. In a letter

dated December 16, 2014, Wanke advised Forbo the Answer, which was due November 21, 2014,

was not timely filed and that if Forbo did not agree to withdraw the Answer, Wanke would move to

strike any new allegations in the answer. (McClory Decl. dated Jan. 5, 2015 (“McClory Decl.”) Ex.

A.) Forbo did not so agree and informed Wanke in subsequent communications that if Wanke

refused to consent to the filing of the Answer, it would seek an order from the court allowing such

filing. (McCloryDecl. Ex. B at 3.) Forbo also offered to discuss and facilitate any discoveryWanke

felt was necessary to respond to the new factual allegations before the discovery deadline passed. 

(McClory Decl. Ex. B at 1.) 

On the same day it filed the Answer, Forbo served Wanke with a discovery request for

documents relating to Wanke’s procurement of IVC display racks for customers and sales of IVC

to specified customers from 2011 to date. (Asai Decl. Ex. 2 at 5.) Wanke refused to respond to this

request based on its untimely filing. (McClory Decl. Ex. A.)

Wanke filed the instant motion to strike on December 19, 2014, seeking to strike the

following eight sentences from the Answer:

1) Forbo then sent that revised press release to Wanke for comment.

2) Wanke did not propose any further changes to the revised press release.

3) By way of further response, on or about February 15, 2013 (some six weeks prior

to termination) Wanke gave a script to its customer service staff to explain that to its

customers that Forbo would begin to sell direct to retailers by April 1, 2013. See

Forbo Ex. 100.

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4) Prior to the termination, Wanke directed its sales people to meet with customers

and urged them to replace their Forbl display racks with IVC display racks. See

Forbo Ex. 126

.

5) By way of further response, Wanke breached its contract with Forbo by directed

its sales people to meet with customers and urged them to replace their Forbo display

racks with IVC display racks (see Forbo Ex. 126) and by encouraging customers to

buy competitive products, rather than Forbo products.

6) On or about February 15, 2013 (some six weeks prior to the termination) Wanke

gave a script to its customer service staff to explain that to its customers that Forbo

would being to selling direct to retailers by April 1, 2013. See Forbo Ex. 100.

7) Wanke directed its sales people to meet with customers and urged them to replace

their Forbo display racks with IVC display racks. See Forbo Ex. 126.

8) The remainder of the allegations in this paragraph are denied.

Forbo filed a motion for to enlarge the time to file the Answer on January 5, 2015.

Legal Standards

I. Rule 6 Motion to Enlarge Time

Under Rule 6(b)(1)(B), “[w]hen an act mayor must be done within a specified time, the court

may, for good cause, extend the time . . . on motion made after the time has expired if the party failed

to act because of excusable neglect.” FED. R. CIV. P. 6(b)(1)(B) (2013). Similar to all of the Federal

Rules of Civil Procedure, Rule 6(b)(1) is to be “liberally construed to effectuate the general purpose

of seeing that cases are tried on the merits.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,

1258-59 (9th Cir. 2010) (citation omitted). While litigants will normally be granted an enlargement

of time in the absence of bad faith or prejudice to the adverse party, “[e]ven when the extension is

sought after the time limit has expired, the good cause standard is satisfied merely upon a showing

of excusable neglect.” Cal Trout v. F. E. R. C., 572 F.3d 1003, 1027 n.1 (9th Cir. 2009). The

question of whether a mistake is excusable is an equitable one, taking into account all of the relevant

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circumstances, such as “the danger of prejudice to [the nonmovant], the length of the delay and its

potential impact on judicial proceedings, the reason for the delay, including whether it was within

the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Inv.

Services Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

II. Rule 12 Motion to Strike

An answer must “state in short and plain terms” the defenses to each claim asserted against

defendant in order to provide plaintiffs with fair notice of the defenses. FED. R. CIV. P. 8(b)(1)(A)

(2014). Under Federal Rule of Civil Procedure 8(c), an “affirmative defense is a defense that does

not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the

elements of the plaintiffs claim are proven.” Barnes v. AT&T Pension Benefit Plan, 718 F. Supp. 2d

1167, 1171-72 (N.D. Cal. 2010) (citation and quotations omitted). An insufficientlypleaded defense

fails to comply with Rule 8 pleading requirements by not providing “plaintiff [with] fair notice of

the nature of the defense” and the grounds upon which it rests. Wyshak v. City Nat’l Bank, 607 F.2d

824, 827 (9th Cir. 1979). 

Rule 12(f) provides that a court may, on its own or on a motion, “strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV.

P. 12(f). “‘Immaterial’ matter is that which has no essential or important relationship to the claim

for relief or the defenses being pleaded.’” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.

1993), rev’d on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 534-535 (1994) (citing 5

CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1382, at 706-

07 (1990)). “‘Impertinent’ matter consists of statements that do not pertain, and are not necessary,

to the issues in question.” Id. at 711.

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The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious

issues by dispensing with those issues prior to trial. Motions to strike are generally viewed with

disfavor and are not frequently granted. See Bassiri v. Xerox Corp., 292 F. Supp. 2d 1212, 1220

(C.D. Cal. 2003), rev’d on other grounds, Bassiri v. Xerox Corp., 463 F.3d 927 (9th Cir. 2006).

Courts must view the challenged pleading in the light most favorable to the pleader. Id. Generally,

“motions to strike should be denied unless it can be shown that no evidence in support of the

allegation would be admissible, or those issues could have no possible bearing on the issues in the

litigation.” Gay-Straight Alliance Network v. Visalia Unified School Dist., 262 F. Supp. 2d 1088,

1099 (E.D. Cal. 2001). However, a motion to strike “may be proper if it will make the trial less

complicated or if allegations being challenged are so unrelated to plaintiff’s claims as to be unworthy

of any consideration as a defense and that their presence in the pleading will be prejudicial to the

moving party.” Thornton v. Solutionone Cleaning Concepts, Inc., No. CIV F 06-1455 AWI SMS,

2007 WL 210586, at *1 (E.D. Cal. Jan. 26, 2007).

Discussion

I. Rule 6 Motion to Enlarge Time

Forbo concedes the Answer was due November 21, 2014, and that it failed to seek leave to

file the Answer late. It now moves for an order retroactively enlarging the period of time to file the

Answer and declaring the Answer filed or, in the alternative, seeks leave to refile the Answer at this

time. In its opposition to Wanke’s motion to strike, Forbo represented the delay in filing the answer

was “due to the demands on counsel’s schedule, a calendaring error by counsel and the need for

client approval of the modifications.” (Def.’s Resp. to Pl.’s Mot. to Strike at 3.)

Wanke urges the court to deny Forbo’s motion for leave to file the Answer based on Forbo’s

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failure to engage in meaningful conferral prior to filing the motion, as required by the district’s local

rules. Local Rule 7-1 provides that “the first paragraph of every motion must certify that: . . . the

parties made a good faith effort through personal or telephone conferences to resolve the dispute and

have been unable to do so[.]” LR 7-1(a)(1)(A) (2014). The purpose of Local Rule 7-1 is to

encourage parties to confer and resolve disputes amicably whenever possible, thus preserving

judicial resources for only those disputes that truly require court intervention. Thompson ex rel.

Thorp Family Charitable Remainder Unitrust v. Federico, 324 F. Supp. 2d 1152, 1172 (D. Or.

2004). District courts have broad discretion in interpreting and applying their local rules. LR 7-

1(a)(2); Miranda v. S. Pac. Transp. Co., 710 F.2d 516, 521 (9th Cir. 1983). The district court, in

its discretion, may remedy a violation of Local Rule 7-1(a) by denying the motion. LR 7-1(a)(2). 

Forbo’s motion includes the required certificate of conferral. The record reveals the parties 

discussed the late filing of the Answer, with Wanke representing that if Forbo refused to withdraw

the Answer it would file a motion to strike, and Forbo stating that if Wanke refused to consent to the

filing of the Answer it would seek an order from the court allowing the filing. Based on these

communications, it seems clear the parties were unable to resolve the dispute relating to the late

filing of the Answer. Wanke argues Forbo failed to adequately confer, but it is clear from the

parties’ positions and the filing of Wanke’s motion to strike that even if Forbo had provided the

specifics of its intended motion, Wanke would not have agreed to the untimely filing of the Answer. 

The court finds the conferral meets the requirements of Local Rule 7-1. 

Wanke alternatively argues the motion should be denied based on substantial prejudice. 

Wanke primarily relies on the arguments made in its motion to strike – that specific allegations in

the Answer require additional discovery, will require another extension of discovery and pretrial

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deadlines, and will result in additional expense. The court notes Wanke has moved to strike specific

factual allegations, not the Answer in its entirety. Accordingly, Wanke’s objection targets only these

factual allegations. Any prejudice resulting from specific allegations will be addressed in the court’s

consideration of Wanke’s motion to strike and is not legitimate grounds for disallowing the filing

of the Answer as a whole.

Additionally, Wanke argues prejudice based on an inability to conduct discovery required

by the new allegations in the Answer. Specifically, Wanke argues in its motion to strike that the

untimely filing of the Answer deprived it of the opportunity to utilize written discovery requests,

which had to be served no later than November 21, 2014, to meet the December 24, 2014, discovery

deadline. Wanke did not file the Complaint until November 4, 2014. Even if Forbo had filed the

Answer timely on November 21, 2014, Wanke would not have been able to serve written discovery

requests in time to meet the discovery deadline. Furthermore, Forbo offered to facilitate discovery

on the new allegations before discoveryexpired. Rather than acceptingForbo’s offer and attempting

to identify and obtain the desired discovery, Wanke filed its motion to strike, therebyeliminating any

possibility of resolving discovery issues timely.

Forbo’s proffered reasons for the delay in filing the Answer qualify as excusable neglect.

Calendaring errors are not uncommon and the increased demands on the time of counsel and clients

are not unusual during the Thanksgiving holidays. Wanke will not be prejudiced by the granting of

the extension of time as Wanke’s objections to the specific factual allegations will be considered by

the court, below, including any prejudice resulting from an extension of the discovery deadline to

allow additional discovery. Accordingly, Forbo’s motion for an order retroactively enlarging the

time to file the Answer to December 16, 2014, should be granted and the Answer accepted as filed. 

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II. Rule 12 Motion to Strike

Wanke seeks to strike eight sentences from the Answer claiming they provide new factual

responses to old allegations and assert a new breach of contract defense. Wanke contends the new

allegations are immaterial and impertinent, and the late addition of a new defense is prejudicial.

The first two objectionable sentences relate to a press release regarding the termination of

the distributorship agreement between the parties. The original allegations represent Forbo prepared

the press release, provided a copy of such release to Wanke for review and comment, and modified

the press release to accommodate Wanke’s requests. The two new sentences further explain that

Forbo then forwarded the modified press release to Wanke and Wanke did not propose any further

changes. 

The existence of the press release and Forbo’s attempts to work with Wanke on the wording

of the press release were addressed in the original complaint and answer and are not new to the

litigation. Forbo’s clarification in that Answer that Wanke had the opportunity to propose additional

changes to the modified press release, but chose not to do so, does not raise substantially new issues

requiring additional discovery. The new allegations are relevant to Wanke’s claim for intentional

interference with economic relations and are neither immaterial or impertinent. Wanke’s motion to

strike these two new sentences should be denied.

The remaining six objectionable sentences relate to Wanke’s communications to customers

that Forbo would soon begin selling directly to retailers, and directions to sales staff to encourage

the replacement of Forbo display racks with IVC display racks as well as the purchase of

competitor’s products, rather than Forbo’s products, prior to the termination of the distribution

agreement. Wanke construes these allegations as asserting a novel breach of contract defense two

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weeks before the close of discovery. 

Forbo does not assert a breach of contract defense in the Answer. The four affirmative

defenses alleged in the Answer were the same four affirmative defenses alleged in the original

answer. In paragraph 34, Forbo does allege Wanke’s actions “breached its contract with Forbo”. 

However, Forbo makes clear in communications with Wanke that the new allegations are relevant

to Forbo’s existing affirmative defenses and Wanke’s claim for damages and were not intended to

allege a new breach of contract defense. 

In an email dated December 18, 2014, Forbo explains the discovery request for electronic

spreadsheets providing information on IVC display racks and sales, which was served on Wanke the

date the Answer was filed, “are critical to the issue of damages and mitigation”. (McClory Decl. Ex.

B at 2.) Forbo reiterates this position on December 19, 2014, stating the information relating to IVC

display racks and sales “are clearly relevant to the merits of Wanke’s damage claims.” (McClory

Decl. Ex. B at 1.) In its opposition brief, Forbo represents the new allegations provide additional

factual support for the previously asserted affirmative defenses of waiver, estoppel, failure to

mitigate damages, and unclean hands. Based on the representations of Forbo, the relevance of the

new allegations to the existing affirmative defenses, and the absence of a clear assertion of a breach

of contract defense in the Answer, the court finds Forbo has not alleged a new breach of contract

defense at this late date. In the absence of a breach of contract defense, the reference to a breach of

contract in paragraph 34 of the Answer becomes immaterial. Accordingly, the reference to Wanke’s

breach of its contract with Forbo should be stricken.

Wanke seeks damages for lost profits, loss of goodwill of customers, and lost goodwill and

the opportunity for business relationships with additional suppliers. Evidence that Wanke increased

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the sales of IVC products either immediately before or after the termination of the distribution

agreement is relevant to the issue of lost profits, lost good well, and lost business opportunities, as

well as the affirmative defenses clearly asserted in both of Forbo’s answers. Wanke argued at

hearing that the IVC allegations are not relevant to Forbo’s mitigation defense because the IVC

product is completely different from Forbo’s product. Wanke’s arguments are more appropriately

resolved either by dispositive motion or at trial. Accordingly, these allegations are not immaterial

or impertinent. However, the IVC allegations should be removed from the body of the Answer,

where Forbo responds to specific allegations in the Complaint, and be added as factual support to

Forbo’s affirmative defense of mitigation of damages. 

Any characterization of the objectionable factual allegations as “new” to the litigation 

requiringWanke to engage in substantial discoveryis belied by evidence the factual allegations were

generated from documents provided byWanke to Forbo, and that the parties have already addressed

the documents in various depositions. Wanke’s possession of the underlying documents and the

existence of deposition testimony from its own representatives renders moot the need for additional

discovery. 

Forbo has not alleged a breach of contract defense in the Answer. The new factual

allegations are relevant to Wanke’s claims or Forbo’s affirmative defenses and are not immaterial

or impertinent. Documents supporting the new factual allegations were provided byWanke and have

been addressed in various depositions, elimnating the need for additional discovery and lessening

any prejudicial impact on Wanke. Wanke’s motion to strike should be granted with regard to the

reference to Wanke’s breach of its contract with Forbo in paragraph 34 of the Answer, and denied

in all other respects. 

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Conclusion

Forbo’s motion (#87) to enlarge time should be GRANTED, and Wanke’s motion (#78) to

strike should be GRANTED with regard to Wanke’s breach of its contract with Forbo in paragraph

34 of the Answer, and DENIED in all other respects. Forbo should be directed to file an amended

answer eliminating the reference to a breach of contract and moving the IVC allegations to the

mitigation of damages paragraph within fourteen (14) days of the adoption of this Findings and

Recommendation.

Scheduling Order

The Findings and Recommendation will be referred to a district judge for review. 

Objections, if any, are due March 31, 2015. If no objections are filed, then the Findings and

Recommendation will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a copy

of the objections. When the response is due or filed, whichever date is earlier, the Findings and

Recommendation will go under advisement. 

DATED this 16th day of March, 2015.

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge

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