Kiner v. Esurance Insurance Services, INC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
GERALD KINER, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 25-cv-2831-TLP-tmp
)
NATIONAL GENERAL INSURANCE 	)
COMPANY, INC., ALLSTATE 	)
INSURANCE COMPANY, and 	)
ESURANCE INSURANCE COMPANY, 	)
)
Defendants. 	)
)
________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTIONS TO STRIKE
________________________________________________________________
Before the Court is Plaintiff Gerald Kiner’s various Motions
to 	Strike. 	(ECF 	Nos. 	51, 	54, 	62.) 	For 	the 	following 	reasons, 	the
motions are DENIED.
I. 	BACKGROUND
This 	case 	was 	initiated 	on 	August 	25, 	2025. 	(ECF 	No. 	2.)
Service of process for all three Defendant insurance companies was
made 	on 	the 	Tennessee 	Department 	of 	Commerce 	(“Department 	of
Commerce”) on September 8, 2025. (ECF Nos. 9, 10.) The Defendants
state that although the summons and complaint for each of them was
provided to the Department of Commerce in early September, it was
not received by their registered agent for service of process until
September 	22, 	2025, 	for 	Esurance 	Insurance 	Company 	(“Esurance”)
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and 	Allstate 	Insurance 	Company 	(“Allstate”), 	and 	September 	23,
2025, 	for 	National 	General 	Insurance 	Company 	(“NGIC”). 	(ECF 	Nos.
23 	at 	PageID 	197, 	34 	at 	PageID 	281, 	35 	at 	PageID 	289.) 	Esurance
filed 	a 	Motion 	for 	an 	Extension 	of 	Time 	to 	File 	Their 	Response,
which 	was 	granted. 	(ECF 	Nos. 	17, 	65.) 	Esurance 	was 	given 	until
October 27, 2025, to file their answer, which they did on October
10, 2025. (ECF Nos. 20, 65.) NGIS and Allstate did not file their
answers until November 3, 2025. (ECF Nos. 32, 33.)
On September 29, 2025, Kiner filed his first two Motions for
Entry of Default. (ECF Nos. 11, 12.) Allstate and NGIC both filed
their 	Responses 	in 	Opposition 	on 	November 	4, 	2025. 	(ECF 	Nos. 	34,
35.) 	Kiner’s 	first 	Motion 	to 	Strike 	seeks 	to 	strike 	Allstate’s
response. (ECF No. 51.) His second Motion to Strike seeks to strike
NGIC’s 	response. 	(ECF 	No. 	54.) 	Also 	on 	November 	4, 	2025, 	Kiner
filed 	a 	Motion 	to 	Consolidate 	Defendants’ 	Filings. 	(ECF 	No. 	39.)
On November 18, 2025, the Defendants filed a Combined Response in
Opposition 	to 	Plaintiff’s 	Motion 	to 	Consolidate. 	(ECF 	No. 	57.)
Kiner then filed his third Motion to Strike on November 20, 2025,
seeking to strike the Defendants’ Combined Response. (ECF No. 62.)
II. 	ANALYSIS
A. 	Motion 	to 	Strike 	Allstate’s 	Response 	in 	Opposition 	to
Plaintiff’s Motion for Default Judgment
A 	motion 	to 	strike 	is 	properly 	brought 	pursuant 	to 	Federal
Rule 	of 	Civil 	Procedure 	12(f). 	Fed. 	R. 	Civ. 	P. 	12(f). 	Under 	Rule
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12(f), 	“[t]he 	court 	may 	strike 	from 	a 	pleading 	an 	insufficient
defense 	or 	any 	redundant, 	immaterial, 	impertinent, 	or 	scandalous
matter.” 	Id. 	Kiner’s 	“Motion 	to 	Strike 	Defendant 	Allstate
Insurance 	Company’s 	Moot 	Response 	in 	Opposition 	to 	Plaintiff’s
Motion for Default Judgment,” though styled as a motion to strike,
does not seek to strike anything from a pleading. Rather, he seeks
to have Allstate’s Response in Opposition to his Motion for Default
Judgment 	declared 	“moot 	and 	void 	ab 	initio” 	and 	for 	the 	court 	to
find that “the filing is tainted by conflation, misrepresentation,
and inequitable conduct under the Clean Hands doctrine.” (ECF No.
51 at PageID 405-06.)
Kiner 	cites 	Federal 	Rule 	of 	Civil 	Procedure 	6(b) 	to 	argue
that 	because 	Allstate 	filed 	its 	response 	to 	Kiner’s 	Motion 	for
Default Judgment late and unaccompanied by a Rule 6(b) Motion, the
response “is moot on its face and cannot serve as a valid vehicle
to 	defeat 	Plaintiff's 	pending 	Motion 	for 	Default 	Judgment.” 	(Id.
at PageID 407-08.) Kiner further argues that Allstate “improperly
conflates: 	(a) 	statutory 	service 	mechanics 	under 	Tenn. 	Code 	Ann.
§ 	56-2-504(b) 	with 	constitutional 	due 	process 	standards; 	and 	(b)
the 	standards 	applicable 	to 	a 	Rule 	55(c) 	motion 	to 	set 	aside
default 	with 	a 	mere 	brief 	opposing 	Plaintiff's 	motion, 	despite
filing 	no 	such 	motion.” 	(Id. 	at 	PageID 	408.) 	He 	states 	that 	this
is 	“inconsistent 	with 	Fed. 	R. 	Civ. 	P. 	11 	(b), 	which 	requires
accurate, non-misleading representations of law and fact[.]” (Id.
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at PageID 409.) His final argument in this motion is that the court
should sanction Allstate for this filing because they “(a) fil[ed]
an 	Answer 	after 	the 	deadline 	without 	leave, 	(b) 	fil[ed] 	a
subsequent Opposition premised on conflated and selective readings
of 	the 	law, 	(c) 	attempt[ed] 	to 	obtain 	leniency 	without 	a 	proper
Rule 	6(b) 	or 	55(c) 	motion, 	and 	(d) 	contradict[ed] 	clear 	docket
facts 	regarding 	time 	and 	notice,” 	and 	that 	they 	come 	before 	the
court 	with 	unclean 	hands 	and 	are 	“not 	entitled 	to 	equitable
indulgence.” (Id. at PageID 409-10.)
Kiner filed his Motion for Default Judgment on September 29,
2025. 	Pursuant 	to 	Local 	Rule 	7.2, 	Allstate 	had 	fourteen 	days 	to
respond to the motion. L.R. 7.2(2). Allstate filed their response
on November 4, 2025, more than fourteen days later. (ECF No. 35.)
Although Allstate was twenty-nine days late in making their filing,
a late filing is not grounds for a response to be declared moot or
void ab initio. Further, Rule 6(b) is not a mechanism for striking
a filing. Rather, it sets out how a party may go about getting an
extension of time to file, either before or after a deadline. Fed.
R. Civ. P. 6(b).
This 	court 	has 	“broad 	authority 	to 	manage 	its 	docket[,]”
including 	by 	accepting 	late 	filings. 	C.S. 	v. 	McCrumb, 	135 	F.4th
1056, 	1069 	(6th 	Cir. 	2025). 	Here, 	Allstate 	states 	that 	they 	did
not receive service of process until September 22, 2025. (ECF No.
34 	at 	PageID 	281.) 	Although 	the 	Motion 	for 	Default 	Judgment 	was
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filed 	after 	this 	and 	Allstate’s 	response 	was 	late, 	the 	court 	has
discretion to permit the late filing. Therefore, Kiner’s Motion to
Strike Allstate’s Response is denied.
B. 	Motion to Strike NGIC’s Response in Opposition to Plaintiff’s
Motion for Default Judgment
Kiner’s 	“Motion 	to 	Strike 	Defendant 	National 	General
Insurance 	Company’s 	Moot 	Response 	in 	Opposition 	to 	Plaintiff’s
Motion 	for 	Default 	Judgment” 	seeks 	to 	have 	NGIC’s 	Response 	in
Opposition to Plaintiff’s Motion for Default Judgment, ECF No. 34,
be 	declared 	void 	ab 	initio 	and 	for 	the 	court 	to 	find 	that 	it 	was
“filed in violation of Federal Rule of Civil Procedure 6(b), Rule
11 (b), 28 U.S.C. § 1927, and the binding equitable principles of
the 	Clean 	Hands 	Doctrine[.]” 	(ECF 	No. 	54.) 	Although, 	once 	again,
this 	motion 	is 	styled 	as 	a 	motion 	to 	strike, 	Kiner 	does 	not 	cite
Rule 	12(f) 	anywhere 	in 	his 	motion. 	He 	instead 	argues 	that 	NGIC’s
filing conflated distinct legal standards in an effort to mislead
the 	court. 	(Id. 	at 	PageID 	427.) 	He 	further 	states 	that 	the 	court
should 	apply 	the 	doctrine 	of 	unclean 	hands 	because 	NGIC 	filed 	an
“[u]ntimely Answer and Response . . . without leave of [c]ourt or
Rule 	6(b) 	motion[,]” 	asserted 	“[c]ontradictory 	defenses[,]”
“[c]onflat[ed] 	statutory 	procedure 	with 	constitutional 	standards
to 	mislead 	the 	[c]ourt[,]” 	distorted 	citations 	and 	omitted
controlling 	authority, 	and 	“[p]ost-record 	rationaliz[ed]
contradictory sworn filings[.]”(Id. at PageID 429.)
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As discussed above, Rule 6(b) is not a mechanism for striking
a 	filing. 	Neither 	is 	Rule 	11(b) 	or 	28 	U.S.C. 	§ 	1927. 	See, 	e.g.,
Tokers, Inc. v. Com. Grp., Inc., No. 3:23-CV-326, 2025 WL 2476160
(E.D. 	Tenn. 	Aug. 	6, 	2025); 	Stenberg 	v. 	Groff, 	No. 	2:24-cv-13112,
2025 WL 1921756 (E.D. Mich. July 11, 2025). Rule 11(b) requires an
attorney 	or 	unrepresented 	party 	to 	certify 	that 	their 	filing 	is
not 	presented 	for 	an 	improper 	purpose, 	is 	not 	frivolous, 	has
evidentiary support, and that any factual denials are warranted on
the evidence. Fed. R. Civ. P. 11(b). Section 1927 places liability
on 	counsel 	who 	unreasonably 	or 	vexatiously 	multiply 	proceedings.
28 U.S.C. § 1927.
As 	with 	Kiner’s 	Motion 	to 	Strike 	Allstate’s 	Response, 	this
court has “broad authority to manage its docket.” C.S., 135 F.4th
at 1069. Here, NGIC’s registered agent did not receive service of
process until September 16, 2025. (ECF 34 at PageID 281.) Although
the 	Motion 	for 	Default 	Judgment 	was 	filed 	after 	this 	and 	NGIC’s
response 	was 	late, 	the 	court 	has 	discretion 	to 	permit 	the 	late
filing. 	Therefore, 	Kiner’s 	Motion 	to 	Strike 	NGIC’s 	Response 	is
denied.
C. 	Motion to Strike Defendants’ Combined Response
In 	his 	“Motion 	to 	Strike 	Defendants’ 	Combined 	Response 	as
Moot 	and 	Void 	Ab 	Initio 	for 	Conflation, 	Misrepresentation, 	and
Bad-Faith Multiplication of Proceedings,” Kiner requests that the
Defendants’ 	Combined 	Response 	be 	stricken. 	(ECF 	No. 	62.)
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He 	first 	argues 	that 	the 	Combined 	Response 	is 	void 	ab 	initio
because 	the 	underlying 	pleadings 	were 	untimely 	and 	filed 	without
leave. 	(Id. 	at 	PageID 	483-84.) 	He 	then 	argues 	that 	the 	Combined
Response 	is 	premised 	on 	misrepresentations. 	(Id. 	at 	PageID 	485.)
He 	also 	argues 	that 	the 	Defendants 	have 	unclean 	hands 	by 	making
“[u]ntimely 	filings[,]” 	not 	filing 	a 	Rule 	6(b) 	motion, 	making
“false 	representation 	about 	deadlines[,]” 	“misrepresent[ing]
controlling 	authority[,]” 	and 	“[f]iling 	answers 	without
jurisdictional 	footing[.]”(Id. 	at 	PageID 	487-88.) 	Last, 	Kiner
argues 	that 	the 	Combined 	Response 	is 	void 	under 	28 	U.S.C. 	§ 	1927
because 	it 	“[u]nreasonably 	and 	exatiously 	multipli[es]
proceedings.” (Id. at PageID 489.)
First, the Combined Response itself was not filed late. Kiner
filed his Motion to Consolidate Defendant’s Filings on November 4,
2025. (ECF No. 39.) The Defendant’s Combined Response was filed on
November 	18, 	2025. 	(ECF 	No. 	57.) 	This 	is 	exactly 	fourteen 	days
after 	Kiner’s 	Motion 	to 	Consolidate 	Defendant’s 	Filings, 	and 	the
Combined Response was therefore timely filed. See L.R. 7.2(2). It
is not relevant that previous filings by the Defendants were filed
late. Kiner’s next argument, that the Combined Response is premised
on 	misrepresentations, 	is 	not 	well 	taken. 	Kiner 	cites 	to 	several
irrelevant 	statutes 	but 	fails 	to 	cite 	any 	authority 	that 	would
allow the Combined Response to be stricken. (ECF No. 62 at PageID
485-87.) Finally, § 1927 does not provide a mechanism for a filing
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to 	be 	declared 	moot 	or 	void 	ab 	initio. 	28 	U.S.C. 	§ 	1927. 	The
Defendants are permitted to make combined filings. Kiner’s Motion
to Strike the Combined Response is denied.
III. CONCLUSION
Therefore, based on the above, Kiner’s three Motions to Strike
are DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
December 19, 2025
Date
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