United States v. 729.773 ACRES OF LAND, ETC., Civ. No. 80-0504.

• Decision Date: 07 January 1982
• Docket Number: Civ. No. 80-0504.
• Citation: 531 F. Supp. 967
• Parties: UNITED STATES of America, Plaintiff, v. 729.773 ACRES OF LAND, MORE OR LESS, SITUATE IN the CITY AND COUNTY OF HONOLULU, State of Hawaii; et al., Defendants.
• Court: U.S. District Court — District of Hawaii

531 F. Supp. 967

UNITED STATES of America, Plaintiff, v. 729.773 ACRES OF LAND, MORE OR LESS, SITUATE IN the CITY AND COUNTY OF HONOLULU, State of Hawaii; et al., Defendants.

Civ. No. 80-0504.

United States District Court, D. Hawaii.

January 7, 1982.

Emilia DeMeo, Asst. U. S. Atty., Wallace W. Weatherwax, U. S. Atty., Honolulu, Hawaii, for plaintiff.

Charles B. Dwight, III, Michael W. Gibson, Ashford & Wriston, Honolulu, Hawaii, for F. E. Trotter, Inc., W. H. McVay, Inc., P. R. Cassiday, Inc. and H. C. Cornuelle, Inc., trustees under the estate of James Campbell, deceased.

Philip J. Leas, Nancy J. Stivers, Cades, Schutte, Fleming & Wright, Honolulu, Hawaii, for Oahu Sugar Co., Ltd. Grant Tanimoto, Deputy Atty. Gen., Tany S. Hong, Atty. Gen., State of Hawaii, Honolulu, Hawaii, for George Freitas, Director of Taxation, State of Hawaii.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE

SAMUEL P. KING, District Judge.

I. Introduction

On September 16, 1980, the United States of America filed a Complaint in Condemnation (hereinafter referred to as the original complaint) to take certain property under its power of eminent domain. The real estate condemned is required for U. S. Naval purposes as an Explosive Safety Hazard Zone at the West Loch Branch of the U. S. Naval Magazine at Lualualei, Pearl Harbor, Hawaii. On May 29, 1981, plaintiff brought this Motion to Strike paragraphs 4(a) through 4(f) of the Amended Answer which was filed on May 14, 1981, by defendant Oahu Sugar Company, Limited (hereinafter referred to as Oahu Sugar). Essentially plaintiff argues that the defenses alleged by Oahu Sugar in these paragraphs are both legally insufficient and untimely.

This Court, having reviewed the memoranda submitted by plaintiff and defendant together with the records filed herein, and having been fully advised in the premises, concludes that all the defenses proffered by Oahu Sugar in its Amended Answer of May 14, 1981, were raised in a timely fashion but that Defenses 4(a), 4(b), 4(c), 4(d), and 4(e) should be stricken as legally insufficient. Accordingly, IT IS HEREBY ORDERED that plaintiff's Motion to Strike as to these defenses is GRANTED. However the remaining defenses raised in the Amended Answer present valid arguments which must be considered at trial. Therefore, IT IS HEREBY ORDERED that plaintiff's Motion to Strike as to the remaining defenses is DENIED.

II. Procedural History

On September 16, 1980, when plaintiff filed the original Complaint in Condemnation, it also filed a Declaration of Taking pursuant to the requirements of 40 U.S.C. § 258a¹ which provides in relevant part:

Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute or such less estate or interest therein as is specified in said declaration, shall vest in the United States....

The original complaint does not specifically mention the inclusion of growing crops in the property which is condemned. However, the contemporaneously filed Declaration of Taking does specifically include the growing crops.

The government deposited $10,000,000 with this Court on September 16, 1980, as estimated compensation for all the interests taken. On September 19, 1980, Oahu Sugar joined in a Stipulation for Withdrawal of Estimated Compensation,² thereby implicitly acknowledging that it had received notice that its interests were included in the property taken by the original Complaint in Condemnation and the contemporaneously filed Declaration of Taking. On October 6, 1980, 20 days after the original complaint was filed, Oahu Sugar filed its Answer (hereinafter referred to as Oahu Sugar's first answer). It contained only general allegations of the damages Oahu Sugar would suffer by reason of the taking. Included were references to "severance damages, crop damages, and damages relating to ... repair and relocation ...."

On May 14, 1981, approximately two months after an Order for Delivery of Possession had been entered, defendant filed an Amended Answer (hereinafter referred to as Oahu Sugar's second answer). In this second answer which was filed pursuant to an order of this court granting Oahu Sugar leave to amend, defendant took the position for the first time that the crops growing on the land were not covered by the original complaint and therefore were not included in the property taken by the government on September 16, 1980. Additionally, Oahu Sugar claimed that the taking was invalid as being without proper legislative and administrative authorization, arbitrary and capricious, and without sufficient public purpose. The earlier general allegation as to damages set forth in paragraph 4 of the first answer (quoted above) was repeated as paragraph 5 of the second answer.

On May 29, 1981, the plaintiff moved to strike paragraphs 4(a) through 4(f) of Oahu Sugar's second answer as being legally insufficient and untimely. Perhaps in recognition of the criticism that the original complaint did not itself mention growing crops, and to remove any doubt, the United States filed an Amended Complaint in Condemnation on August 18, 1981 (hereinafter referred to as the second complaint). The second complaint has an Amended Schedule "B" attached which describes the "interest to be taken as an estate in fee simple, including all improvements and crops located thereon."

In response to the second complaint, Oahu Sugar on August 27, 1981, filed its Answer to Amended Complaint (hereinafter referred to as Oahu Sugar's third answer). It essentially repeats the second answer, with the exception that it is no longer claimed that the growing crops are not included in the property taken.

The United States has not filed another Motion to Strike directed at Oahu Sugar's Answer to Amended Complaint, but it is understood that the May 29, 1981, Motion to Strike Oahu Sugar's second answer also applies to Oahu Sugar's third answer which was filed August 27, 1981. Although Oahu Sugar's newest answer no longer alleges that growing crops are not included in the taking, this Court will deal with that issue as it may relate to other issues.

III. Argument

A. Motion to Strike Defenses as Untimely

The government argues in part that the Motion to Strike should be granted because the defenses posed by Oahu Sugar in its second answer were raised in an untimely fashion since they were not pleaded within 20 days after the original complaint in condemnation was filed, as is the apparent requirement of Fed.R.Civ.P. 71A(e). The rule states quite explicitly that:

... A defendant waives all defenses and objections not so presented within 20 days, ... except as to the amount of the compensation to be paid for his property .... No other pleading or motion asserting any additional defense or objection shall be allowed. Fed.R.Civ.P. 71A(e).

While Oahu Sugar's first answer was filed within the 20-day time limit, the defenses which are the subject of the present motion were not raised until approximately eight months later. However, Rule 71A(f) permits the pleadings to be amended. While subsection (f) refers primarily to amendments of the complaint, the note to Rule 71A(f) by the Advisory Committee which drafted the rules expressly recognizes a defendant's ability to amend an answer in accordance with Fed.R.Civ.P. 15. Rule 15, in turn, permits a defendant to amend an answer within 20 days after it is served if the action has not yet been placed on the trial calendar, or to amend it after that time period has passed "... by obtaining leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R. Civ.P. 15(a). In the present case, Oahu Sugar obtained leave of this court (by action of the U. S. Magistrate) on May 13, 1981, to amend its answer. Since the first answer was filed within the time period allowed by Rule 71A(e), the defenses raised in the second answer are timely in view of the language of Rule 15(c) which provides in relevant part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading ....

Accord; 7 Moore's Federal Practice ¶ 71A.703. Therefore, the timely defenses raised by Oahu Sugar in the second answer must each be evaluated in order to determine their legal sufficiency.

B. Motion to Strike Defenses as Insufficient

Plaintiff's motion to strike defenses 4(a) through 4(f) of defendant's second answer is made pursuant to Fed.R.Civ.P. 12(f), which states in relevant part:

Upon motion made by a party ... the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

A motion to strike is a severe measure and it is generally viewed with disfavor. Although it is not normally granted unless prejudice would result to the movant from the denial of the motion, it is appropriately granted where the defense is clearly legally insufficient, Narragansett Tribe, Etc. v. So. R. I. Land Devel. Corp., 418 F.Supp. 798, 801 (D.R.I.1976), as, for example, when there is clearly no bona fide issue of fact or law. Prudential Ins. Co. of America v. Marine Nat. Exch. Bank, 55 F.R.D. 436, 438 (E.D.Wis.1972).

1. Motion to Strike Defenses 4(a) and 4(b)

Oahu Sugar raises the following two arguments as defenses 4(a) and 4(b) in the second answer:

(a) Oahu is the tenant of all lands covered by the Complaint and the owner of all crops and improvements thereon.

(b) Oahu's growing crops on the lands covered by the Complaint are Oahu's personal property and are not covered by the Complaint.

Essentially defenses 4(a) and 4(b) state two parts of the same objection: that the original...