Hammer et al v. Peninsula Poultry Equipment Company, Inc. et al

Filing 55

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 1/8/13. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN W. HAMMER, Jr. and
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,
Plaintiffs,

*

PENINSULA POULTRY
EQUIPMENT COMPANY, INC.
and KENNEDY KONSTRUCTION
KOMPANY,

*

Civil Action No. RDB-12-1139

*
*
*
*

Defendants.
*

*
*

v.

*

*

*

*

*
*
*
*
*
MEMORANDUM OPINION

*

*

*

Plaintiffs John W. Hammer, Jr. (“Mr. Hammer”) and Cumberland Mutual Fire
Insurance Company (“Cumberland”) have filed suit against the Defendants Peninsula
Poultry Equipment Company, Inc. (“Peninsula Poultry”) and Kennedy Konstruction
Kompany (“Kennedy Konstruction”) (together, “Defendants”).

They allege products

liability, breach of contract, and negligence arising out of property damage to Mr. Hammer’s
commercial poultry house, which was designed and constructed by the Defendants.
Currently pending before this Court are Mr. Hammer’s and Cumberland’s Motions to Strike
portions of the Defendants’ Answers, in particular specific affirmative defenses raised by the
Defendants (ECF Nos. 22, 23, 24). Also pending is Cumberland’s Motion for Leave to
Amend Complaint (ECF No. 41). The parties’ submissions have been reviewed and no
hearing is necessary to decide these matters. See Local Rule 105.6 (D. Md. 2011). For the
reasons that follow, the Motions to Strike Defendant Kennedy Konstruction’s Affirmative
1 

Defenses, filed by Mr. Hammer (ECF No. 22) and Cumberland (ECF No. 24), are
DENIED AS MOOT; the Motion to Strike Defendant Peninsula Poultry’s Affirmative
Defenses, filed by Mr. Hammer (ECF No. 23), is GRANTED IN PART and DENIED IN
PART; and Cumberland’s Motion for Leave to Amend Complaint (ECF No. 41) is
GRANTED.
BACKGROUND
The following facts are alleged in the Plaintiff’s Complaint, ECF No. 2. Plaintiff
John W. Hammer, Jr. (“Mr. Hammer”) resides in Caroline County, Maryland, where he owns
and operates a poultry farm. Compl. ¶ 1. Plaintiff Cumberland Mutual Fire Insurance
Company (“Cumberland”), which insures Mr. Hammer’s property, is incorporated under the
laws of New Jersey and has its principal place of business in Bridgeton, New Jersey.1
Defendant Peninsula Poultry Equipment Company (“Peninsula Poultry”) is a Delaware
corporation doing business in Maryland; its business involves designing, fabricating,
manufacturing, and constructing the buildings used to house live chickens, which are known
as poultry houses.

Id. ¶ 2.

Defendant Kennedy Konstruction Kompany (“Kennedy

Konstruction”) is a Virginia corporation that also designs and manufactures the buildings
and components for poultry houses. Id. ¶ 3.
In 2004, Mr. Hammer entered into a contract with Peninsula Poultry in which
Peninsula Poultry agreed to design and construct two commercial poultry houses for Mr.
Hammer’s farm. Id. ¶¶ 5-8. Peninsula Poultry then entered into contracts with Kennedy

1

These facts are not alleged in Mr. Hammer’s Complaint; however, Cumberland has asserted these
facts in various filings with this Court. See, e.g., Mem. of Law in Support of Mot. for Leave to
Amend 1-2, ECF No. 41-1.

2 

Konstruction relating to the design and construction of these poultry houses. Id. ¶ 9.
Peninsula Poultry and Kennedy Konstruction (together, “Defendants”) thereafter built the
two poultry houses. Id. ¶ 10. On or about December 20, 2009, a snowstorm passed through
the area of Mr. Hammer’s farm and deposited snow on the roofs of the two poultry houses.
Id. ¶ 11. This snowfall caused the roof of one of the poultry houses to partially collapse. Id.
¶ 12.
Mr. Hammer and Cumberland (together, “Plaintiffs”) separately filed suit against the
Defendants in the Circuit Court for Caroline County, alleging various theories of liability
arising out of the damage to the poultry houses.

Cumberland filed a complaint in

subrogation against the Defendants for the amount that Cumberland paid to Mr. Hammer
under his property insurance policy. Mr. Hammer filed a complaint seeking to recover the
remainder of his damages. Mr. Hammer’s case was removed to this Court on grounds of
diversity jurisdiction on April 13, 2012. See Notice of Removal, ECF No. 1. On the next
day, Cumberland’s case was consolidated with Mr. Hammer’s case and removed to this
Court. See Order Granting Motion to Consolidate Cases, ECF No. 6; Notice of Federal
Removal, ECF No. 7.
In response to the Plaintiffs’ Complaints, each Defendant submitted answers
containing affirmative defenses. These affirmative defenses are the subject of three pending
Motions to Strike, ECF Nos. 22, 23, and 24. In particular, Defendant Peninsula Poultry
asserts the following “affirmative defenses” in its Answer to Mr. Hammer’s Complaint:
93.
94.

Plaintiff’s Complaint fails to state a claim upon which relief can be
granted.
Defendant generally denies liability and further states that it did not
commit the wrongs alleged.
3 

95.
96.
97.
98.
99.

Plaintiff’s claims are barred by contributory negligence.
Defendant reserves the right to raise any defense available in law or in
equity.
The Plaintiff has failed to join all parties necessary to a resolution of
the dispute.
Plaintiff’s injuries, losses, and/or damages, if any, were the result of
acts or omissions of other defendants or third parties over whom this
Defendant had no control or right of control.
Plaintiff failed to mitigate or otherwise act to lessen or reduce the
damages alleged in his claim.

Peninsula Poultry’s Answer ¶¶ 93-99, ECF No. 11.
Defendant Kennedy Konstruction filed Answers to each Plaintiff’s Complaint, which
contained more than thirty statements labeled “Defenses.”2 Only some of these statements
are affirmative defenses, while others function as admissions and denials in response to the
allegations of the Plaintiffs’ Complaints. The affirmative defenses asserted by Kennedy
Konstruction include the doctrines of accord and satisfaction, assumption of the risk,
collateral estoppel, contributory negligence, duress, laches, payment, release, res judicata,
statute of frauds, statute of limitations, and waiver. See Kennedy Konstruction’s Answer to
Hammer 1-3, ECF No. 18; Kennedy Konstruction’s Answer to Cumberland 1-4, ECF No.
19.
Mr. Hammer has filed two Motions to Strike, one asking this Court to strike the
affirmative defenses raised by Kennedy Konstruction, see Mot. to Strike Kennedy
Konstruction’s Affirmative Defenses, ECF No. 22, and the other asking this Court to strike
Defendant Peninsula Poultry’s affirmative defenses, see Mot. to Strike Peninsula Poultry’s

2

Kennedy Konstruction’s Answer to Mr. Hammer’s Complaint includes thirty-eight “Defenses.”
See Kennedy Konstruction’s Answer to Hammer 1-6, ECF No. 18. Kennedy Konstruction’s
Answer to Cumberland’s Complaint includes thirty-four “Defenses,” which are quite similar and in
some cases identical to the defenses in the Answer to Mr. Hammer’s Complaint. See Kennedy
Konstruction’s Answer to Cumberland 1-6, ECF No. 19.

4 

Affirmative Defenses, ECF No. 23. Mr. Hammer argues that just as a plaintiff must plead
sufficient facts to support a claim, so too must a defendant that raises affirmative defenses.
He contends that the pleading standards set forth by the Supreme Court in Bell Atlantic v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), apply equally to
affirmative defenses. For these reasons, Mr. Hammer seeks relief under Rule 12(f) of the
Federal Rules of Civil Procedure, which permits a court to strike from a pleading “an
insufficient defense.” Fed. R. Civ. P. 12(f). Likewise, Plaintiff Cumberland has filed a
Motion to Strike the affirmative defenses raised by Kennedy Konstruction. See Mot. to
Strike Kennedy Konstruction’s Affirmative Defenses, ECF No. 24. Cumberland argues, just
as Mr. Hammer does, that the affirmative defenses asserted by Kennedy Konstruction
should be stricken pursuant to Rule 12(f) because they are not supported by facts and do not
provide fair notice to the plaintiffs. Unlike Mr. Hammer, Cumberland has not filed a
Motion to Strike Peninsula Poultry’s affirmative defenses.
After the Plaintiffs filed these Motions to Strike, Kennedy Konstruction amended its
Answers to each Plaintiff. In these Amended Answers, Kennedy Konstruction cut back on
the number of affirmative defenses it asserted and included a concise set of supporting facts
with each defense. See Kennedy Konstruction’s Resp. to Cumberland’s Mot. to Strike, ECF
No. 27; Kennedy Konstruction’s Resp. to Hammer’s Mot. to Strike, ECF No. 28. Kennedy
Konstruction argues that these amended pleadings meet the “plausibility standard” of
Twombly, 550 U.S. 544, and Iqbal, 556 U.S. 662, and provide sufficient notice to the plaintiffs.
See, e.g., Kennedy Konstruction’s Resp. to Cumberland’s Mot. to Strike ¶¶ 6-7.

5 

Peninsula Poultry, rather than amending its Answer, filed a Response in Opposition
to Mr. Hammer’s Motion to Strike. It maintains that its pleadings are sufficient under the
law and that the Motion to Strike should be denied. See Peninsula Poultry’s Resp. in Opp.,
ECF No. 31. If this Court determines otherwise, however, Peninsula Poultry has requested
leave to file an amended answer. Id. at 5.
Also pending before this Court is Cumberland’s Motion for Leave to Amend
Complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure.

See

Cumberland’s Mot. for Leave to Amend, ECF No. 41. Pursuant to Local Rule 103,3
Cumberland requested the consent of all counsel to this Motion, and while counsel for Mr.
Hammer and Peninsula Poultry consented, counsel for Kennedy Konstruction has not
received authority to consent. Id. ¶ 5. The amendments that Cumberland seeks would make
its original Complaint filed in the Circuit Court for Caroline County mirror the facts and
causes of action alleged in Mr. Hammer’s Complaint. Mem. of Law in Support of Mot. for
Leave to Amend 3, ECF No. 41-1. Cumberland argues that these amendments would not
change the nature of the litigation or prejudice the Defendants, since the Defendants are
already involved in defending against Mr. Hammer’s allegations. Id.
This Court will address first each Plaintiff’s Motion to Strike Kennedy Konstruction’s
Affirmative Defenses (ECF Nos. 22, 24). Because Kennedy Konstruction’s amendments
cure the pleading deficiencies in its original pleading, these Motions to Strike will be denied
as moot. Next this Court will consider Mr. Hammer’s Motion to Strike Peninsula Poultry’s

3

Local Rule 103.6(d) states as follows: “Before filing a motion requesting leave to file an amended
pleading, counsel shall attempt to obtain the consent of other counsel. Counsel shall state in the
motion whether the consent of other counsel has been obtained.” Local Rule 103.6(d) (D. Md.
2011).

6 

Affirmative Defenses (ECF No. 23). Because some of these defenses are insufficiently pled,
this Court will strike the insufficient defenses and grant Peninsula Poultry’s request for leave
to amend. Peninsula Poultry has leave to file an amended answer within thirty days after
entry of the accompanying Order. Finally, this Court will turn its attention to Cumberland’s
Motion for Leave to Amend Complaint (ECF No. 41); since there is no prejudice to the
Defendants in allowing such amendments, Cumberland’s Motion will be granted.
STANDARDS OF REVIEW
A. Motion to Strike an Insufficient Defense
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a “court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). Thus, a defense may be excised if it does not
meet the pleading requirements of Rules 8 and 9. See McLemore v. Regions Bank, 2010 U.S.
Dist. LEXIS 25785, at *44 (M.D. Tenn. Mar. 18, 2010). The district court enjoys wide
discretion in determining whether to strike an affirmative defense under Rule 12(f) in order
“to minimize delay, prejudice and confusion by narrowing the issues for discovery and trial.”
Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649 (D. Kan. 2009).
Nevertheless, the United States Court of Appeals for the Fourth Circuit has noted
that Rule 12(f) motions are generally viewed with disfavor “because striking a portion of a
pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory
tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal
citations and quotations omitted). Accordingly, “in reviewing motions to strike defenses,
federal courts have traditionally ‘view[ed] the pleading under attack in a light most favorable
7 

to the pleader.’” Palmer v. Oakland Farms, Inc., 2010 U.S. Dist. LEXIS 63265, at *4 (W.D. Va.
June 24, 2010) (internal quotation omitted). Finally, when affirmative defenses are stricken,
the defendant should normally be granted leave to amend. Banks v. Realty Mgmt. Serv., 2010
U.S. Dist. LEXIS 7501, at *3 (E.D. Va. Jan. 29, 2010) (citing 5C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1381 (3d ed. 2004)).
B. Motion for Leave to Amend Complaint
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, “[a] party may amend
its pleading once, as a matter of course” within “21 days after serving it,” or “if the pleading
is one to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.” Fed. R. Civ. P. 15(a)(1)(A)–(B). “In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). In Foman v. Davis, 371 U.S.
178, 182 (1962), the United States Supreme Court explained that “in the absence of any
apparent or declared reason . . . the leave sought should, as the rules require, be ‘freely
given.’” The Court of Appeals for the Fourth Circuit has “interpreted [Rule] 15(a) to
provide that ‘leave to amend a pleading should be denied only when the amendment would
be prejudicial to the opposing party, there has been bad faith on the part of the moving
party, or the amendment would have been futile.’” Laber v. Harvey, 438 F.3d 404, 426 (4th
Cir. 2006) (citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Undue
prejudice to the opposing party may result from an amendment that would substantially
change the nature of the case or require the opposing party to invest more time and expense
8 

in new litigation preparation. See 6 Wright & Miller § 1487, nn. 11-12 and associated text
(collecting cases).
ANALYSIS
I.

Motions to Strike Kennedy Konstruction’s Affirmative Defenses (ECF
Nos. 22, 24)

Both Plaintiffs in this case, Mr. Hammer and his insurer Cumberland, have asked this
Court to strike the affirmative defenses originally asserted by Kennedy Konstruction. They
seek relief pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, which permits a
court to “strike from a pleading an insufficient defense.” Fed. R. Civ. P. 12(f). This Court
has previously found that the plausibility standard set forth in Bell Atlantic v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 566 U.S. 662 (2009), applies as much to the pleading of
affirmative defenses as it does to the pleading of allegations in a complaint. See Bradshaw v.
Hilco Receivables, LLC, 725 F. Supp. 2d 532, 533 (D. Md. 2010); see also Aguilar v. City of Lights
of China Restaurant, Inc., No. DKC 11-2416, 2011 WL 5118325, at *2 (D. Md. Oct. 24, 2011)
(“The majority of district courts, including those within this circuit, have concluded that the
Twombly–Iqbal approach does apply to affirmative defenses.” (citing Bradshaw, 725 F. Supp.
2d at 536; Racick v. Dominion Law Assocs., 270 F.R.D. 228, 233 (E.D.N.C. 2010)). Thus, under
the plausibility standard an assertion of an affirmative defense must contain “more than
labels and conclusions” and a “formulaic recitation” of the elements of the defense. See
Twombly, 550 U.S. at 555. Additionally, an assertion of an affirmative defense is insufficient
if it does not contain “enough facts” demonstrating that it is “plausible on its face.” Id. at
570.

9 

Kennedy Konstruction’s first attempt to plead its affirmative defenses fell short of
meeting the Twombly–Iqbal pleading standard. The Defendant provided nothing more than
bare-bones assertions of its affirmative defenses—the sort of “formulaic recitation” format
that was rejected by the Supreme Court in Bell Atlantic v. Twombly. 550 U.S. 544. In its
Amended Answers, however, Kennedy Konstruction cured these deficiencies.4

For

example, in the Answer to Mr. Hammer’s Complaint, Kennedy Konstruction stated “[t]hat
the Plaintiff’s claims may be barred by the doctrine of contributory negligence” and “[t]hat
the Plaintiff’s claims may be barred by the Statute of Limitations.” Kennedy Konstruction’s
Answer to Hammer 2-3. In its Amended Answer, Kennedy Konstruction retained both
defenses yet provided more factual details, stating “Defendant, Kennedy Konstruction
Kompany, Inc., asserts that the Plaintiff’s claims are barred by the doctrine of contributory
negligence as the Plaintiff was negligent in maintaining and operating the chicken house,
which caused it to collapse . . . [and] that the Plaintiff’s claims are barred by the Statute of
Limitations as the claims arose more than three years before this action was commenced.”
Kennedy Konstruction’s Amended Answer to Hammer ¶¶ 17-18, ECF No. 30.
This Court finds that Kennedy Konstruction’s amended pleadings are improved by
concise, supporting factual allegations. Additionally, these pleadings comply with Form 30,

4

The Amended Answers were timely filed. Kennedy Konstruction’s Answers were filed on April
30, 2012; the Motions to Strike Kennedy Konstruction’s Affirmative Defenses were filed on May 7
and 8, 2012; and Kennedy Konstruction’s Amended Answers were filed on May 21, 2012. Thus the
amended pleadings were filed within the twenty-one-day period of Rule 15(a) of the Federal Rules of
Civil Procedure. See Fed. R. Civ. P 15(a)(1)(B) (permitting a party “to amend its pleading once as a
matter of course within . . . 21 days after service of a motion under Rule 12(b), (e), or (f) . . . .”); see
also Alliance Solutions, Inc. v. Quest Software, Inc., No. ELH-11-2115, 2012 WL 692883, at *7 (D. Md.
Mar. 1, 2012) (noting that Rule 6(d) of the Federal Rules of Civil Procedure extends the twenty-oneday period to twenty-four days where the motion under Rule 15(a)(1)(B) is served via the CM/ECF
electronic filing system).

10 

appended to the Federal Rules of Civil Procedure by Rule 84,5 which offers examples of
sufficiently pled affirmative defenses. As this Court has previously recognized, a proper
affirmative defense, as illustrated in Form 30, includes “not only the name of the affirmative
defense, but also facts in support of it.” Aguilar, 2011 WL 5118325, at *3 (reviewing Form
30’s “Affirmative Defense—Statute of Limitations,” in the Appendix to the Federal Rules of
Civil Procedure). It also worth noting that Kennedy Konstruction’s amended defenses
number substantially fewer than the originally alleged set of affirmative defenses—suggesting
that upon further reflection of the facts of the case at hand, Kennedy Konstruction deleted
those defenses that were not relevant.
As this Court emphasized in Bradshaw, “[p]leading requirements are intended to
ensure that an opposing party receives fair notice of the factual basis for an assertion
contained [in] a claim or defense.” 725 F. Supp. 2d at 536. Moreover, the application of the
Twombly–Iqbal standard to affirmative defenses “promote[s] litigation efficiency and will
discourage defendants from asserting boilerplate affirmative defenses that are based upon
nothing more than ‘some conjecture that [they] may somehow apply.’” Id. (quoting Hayne,
263 F.R.D. at 650).

The important policies behind the Twombly–Iqbal pleading

requirements—fair notice to the opposing party and the excising of boilerplate allegations to
achieve more efficient litigation—are clearly at work in Kennedy Konstruction’s Amended
Answers. These amendments provide the Plaintiffs the factual bases underlying Kennedy

5

Rule 84 of the Federal Rules of Civil Procedure states as follows: “The forms in the Appendix
suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.” Fed.
R. Civ. P. 84.

11 

Konstruction’s defenses and reflect a more careful and discerning pleading practice on the
part of Kennedy Konstruction.
In short, Kennedy Konstruction amended its pleadings to cure the deficiencies that
the Plaintiffs exposed in their Motions to Strike. Accordingly, Mr. Hammer’s Motion to
Strike Kennedy Konstruction’s Affirmative Defenses, ECF No. 22, and Cumberland’s
Motion to Strike Kennedy Konstruction’s Affirmative Defenses, ECF No. 24, became moot
when Kennedy Konstruction amended its Answers. These Motions to Strike are therefore
DENIED AS MOOT.
II.

Motion to Strike Defendant Peninsula Poultry’s Affirmative Defenses
(ECF No. 23)

In addition to moving to strike the affirmative defenses of Kennedy Konstruction,
Mr. Hammer also moved to strike Peninsula Poultry’s affirmative defenses on the same
grounds, namely that Peninsula Poultry’s affirmative defenses failed to meet the Twombly–
Iqbal pleading standard. In response to Mr. Hammer’s Motion to Strike, Peninsula Poultry
argues first that there is a circuit split on the application of the Twombly–Iqbal pleading
standard to affirmative defenses, and second that its affirmative defenses were “very
specific” and did not rely on “boilerplate.” Peninsula Poultry’s Resp. in Opp. 5, ECF
No. 31.
As previously noted, this Court, consistent with the majority of district courts which
have addressed this question, has specifically held that a party’s pleading of affirmative
defenses must meet the Twombly–Iqbal standard. Aguilar, 2011 WL 5118325, at *2 (“The
majority of district courts, including those within this circuit, have concluded that the
Twombly–Iqbal approach does apply to affirmative defenses.” (citing Bradshaw, 725 F. Supp.
12 

2d at 536; Racick, 270 F.R.D. at 233)).

As explained in Section II of this Memorandum

Opinion, Bell Atlantic v. Twombly requires a party to submit pleadings that contain “more than
labels and conclusions” and a “formulaic recitation” of the elements of the defense. 550
U.S. at 555. While this Court acknowledges a split of authority on this question,6 it holds
firm to its position that fairness and efficiency concerns compel the conclusion that
Peninsula Poultry must plead plausible affirmative defenses.
In pleading some of its affirmative defenses, Peninsula Poultry has not met its
burden.

Specifically, the affirmative defenses asserted at paragraphs 95, 97, and 98—

contributory negligence, failure to join a necessary party, and lack of control over the parties
who caused the injuries or damages—are pled in a conclusory fashion and without enough
facts to show that the defenses are plausible. It is especially clear that Peninsula Poultry’s
defense based on failure to join a necessary party is insufficient when viewed in light of the
example in Form 30 of the Appendix to the Federal Rules of Civil Procedure. As Form 30
illustrates, this particular defense should include not only the title of the defense but also the
name of the party required to be joined, and, if possible, the required party’s citizenship and
a statement regarding the court’s jurisdiction over the case if he were joined. See Fed. R. Civ.
P. App. Form 30. For these reasons, these affirmative defenses must be stricken.

6

Peninsula Poultry refers to two cases in which a district court declined to apply the Twombly–Iqbal
standard to affirmative defenses. See Lopez v. Asmar’s Mediterranean Food, Inc., No. 1:10cv1218(JCC),
2011 WL 98573 (E.D. Va. Jan. 10, 2011); Tyco Fire Prods., LP v. Victaulic Co., 777 F. Supp. 2d 893,
898 (E.D. Pa. 2011). In Tyco, the Eastern District of Pennsylvania noted two additional cases in
which a district court came to the same conclusion. See 777 F. Supp. 2d at 899 (citing Charleswell v.
Chase Manhattan Bank, N.A., No. 01–119, 2009 WL 4981730, at *4 (D.Vi. Dec. 8, 2009); Fed. Trade
Comm’n v. Hope Now Modifications, LLC, 09-1203 2011 WL 883202, at *2 (D.N.J. Mar. 10, 2011)). No
federal court of appeals has addressed this question.

13 

On the other hand, Peninsula Poultry’s remaining affirmative defenses—set out in
paragraphs 93, 94, 96, and 99—are sufficiently pled. The defenses asserted in paragraphs 94
and 96 are general defenses denying liability; they do not require additional factual support to
demonstrate plausibility. The others, which are asserted in paragraphs 93 and 99, conform
to the level of specificity illustrated in Form 30 and provide fair notice to the Plaintiffs.
Accordingly, this Court will not strike these defenses, as they are sufficient for purposes of
Rule 12(f) of the Federal Rules of Civil Procedure.
In conclusion, this Court finds that the affirmative defenses asserted by Peninsula
Poultry at paragraphs 95, 97, and 98 of its Answer must be stricken. Therefore, Mr.
Hammer’s Motion to Strike Peninsula Poultry’s Affirmative Defenses, ECF No. 23, is
GRANTED to the extent that paragraphs 95, 97, 98 must be STRICKEN and DENIED to
the extent that paragraphs 93, 94, 96, and 99 shall remain intact. Peninsula Poultry is granted
leave to file an amended answer correcting these pleading deficiencies within thirty days after
entry of the Order accompanying this Memorandum Opinion. The party’s amended answer
need not contain “detailed factual allegations.” Twombly, 550 U.S. at 555. As this Court held
in Aguilar, Peninsula Poultry need only provide in “short and plain terms” the nature of the
asserted defense. 2011 WL 5118325, at *4.
III.

Motion for Leave to Amend Complaint (ECF No. 41)

The final motion to be addressed is Cumberland’s Motion for Leave to Amend
Complaint, ECF No. 41. Cumberland seeks to amend its complaint so that it is consistent
with the factual allegations and causes of action pled in Mr. Hammer’s Complaint, ECF No.
2. Because Cumberland’s deadline to amend its pleadings expired on June 15, 2012, it seeks
14 

leave to amend under Rule 15(a)(2) of the Federal Rules of Civil Procedure, which permits a
court to give leave “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
The Court of Appeals for the Fourth Circuit has “interpreted [Rule] 15(a) to provide
that ‘leave to amend a pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party,
or the amendment would have been futile.’” Laber v. Harvey, 438 F.3d at 426 (citing Johnson v.
Oroweat Foods Co., 785 F.2d at 509). In this case, there is no concern that the amendment
would be futile or that it reflects bad faith on the part of Cumberland; the only factor
warranting discussion is prejudice to the opposing parties. Courts have found such prejudice
where an amendment would substantially change the nature of the case or would require the
opposing party to invest more time and expense in new litigation preparation. See 6 Wright
& Miller § 1487, nn. 11-12 and associated text (collecting cases). In this case, however,
Cumberland seeks amendments that will do no such damage. If Cumberland’s complaint is
made more consistent with Mr. Hammer’s, then the Defendants will have to confront only
the same allegations that they have already encountered in litigation with Mr. Hammer.
Moreover, counsel for one of the Defendants, Peninsula Poultry, has consented to
Cumberland’s Motion, see Cumberland’s Mot. for Leave to Amend ¶ 5, and the other
Defendant, Kennedy Konstruction, did not submit a response in opposition to this Motion.
Thus this Court finds no cause for concern with Cumberland’s request, and Cumberland’s
Motion for Leave to its Amend Complaint, ECF No. 41, is GRANTED.

15 

CONCLUSION
For the reasons stated above, this Court makes the following rulings: Plaintiff John
W. Hammer, Jr.’s Motion to Strike Defendant Kennedy Konstruction Kompany’s
Affirmative Defenses (ECF No. 22) is DENIED AS MOOT; Plaintiff John W. Hammer,
Jr.’s Motion to Strike Defendant Peninsula Poultry Equipment Company’s Affirmative
Defenses (ECF No. 23) is GRANTED IN PART and DENIED IN PART, specifically, the
affirmative defenses set forth in paragraphs 95, 97, and 98 of Defendant Peninsula Poultry
Equipment Company’s Answer are hereby STRICKEN, and the affirmative defenses set
forth in paragraphs 93, 94, 96, and 99 of Defendant Peninsula Poultry Equipment
Company’s Answer shall not be stricken; Plaintiff Cumberland Mutual Fire Insurance
Company’s Motion to Strike Defendant Kennedy Konstruction Kompany’s Affirmative
Defenses (ECF No. 24) is DENIED AS MOOT; and Plaintiff Cumberland Mutual Fire
Insurance Company’s Motion for Leave to Amend Complaint (ECF No. 41) is GRANTED.
A separate Order follows.
Dated:

January 8, 2013

/s/ ________________________________

Richard D. Bennett
United States District Judge

16