Constan Gervais Street Car Wash, Inc. v. Auto-Owners Insurance Company, 793 F.Supp.3d 732

Constan Gervais Street Car Wash, Inc. (“Constan”) sued Auto-Owners Insurance Company (“Auto-Owners”) for breach of contract and bad faith, after Auto-Owners denied coverage for vandalism losses at Constan’s leased property in Columbia, SC, based on the insurance policy’s “vacancy” exclusion.
Auto-Owners removed the case to federal court and filed an amended counterclaim seeking declaratory judgment that it properly denied coverage because the property was vacant for over 60 days prior to the loss, per the policy terms.
Constan filed motions to strike Auto-Owners’s amended counterclaim as untimely, redundant, and duplicative, and to dismiss it for failure to state a claim.
Auto-Owners admitted a one-day late filing of its amended counterclaim due to a scrivener’s error and argued excusable neglect under Rule 6(b)(1)(B).
The amended counterclaim included new factual allegations and specific requests for declarations not raised in Constan’s original claims or Auto-Owners’s affirmative defenses.
The court focused on whether to allow the amended counterclaim and whether it was merely duplicative or insufficiently pled.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of amended counterclaim (1-day late)	Should be struck as untimely, strict compliance required under Rule 6(b)(1)(B)	Delay was due to excusable neglect (scrivener’s error); no prejudice to plaintiff	Motion to strike denied; excusable neglect established
Redundancy/duplicity of amended counterclaim	Amended counterclaim is redundant, mirrors plaintiff’s claims, and duplicates affirmative defenses	Counterclaim seeks distinct declaratory relief not covered by claims/defenses	Motion to strike denied; counterclaim allowed
Sufficiency of pleading (failure to state a claim)	Counterclaim lacks factual specificity under Rules 8 and 9	Counterclaim has sufficient factual allegations to support claim (misrepresentation, vacancy, etc.)	Motion to dismiss denied; adequate facts pled
Need for separate motion for excusable neglect	Rule 6(b)(1)(B) requires a written motion for extension after deadline	Response suffices as motion in interests of justice	Motion requirement overlooked in interests of justice

Ashcroft v. Iqbal, 556 U.S. 662 (pleading sufficiency under Rule 8)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (motion to dismiss standard under Rule 12(b)(6))
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (excusable neglect standard for late filings)
Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530 (key factor for excusable neglect is reason for delay)
Edwards v. City of Goldsboro, 178 F.3d 231 (pleading standards for sufficiency)
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (Rule 9(b) pleading standard for fraud/misrepresentation)