Serby v. First Alert, Inc. et al
Filing
46
DECISION AND ORDER: The Court finds that Defendants' affirmative defenses and counterclaims are not barred by res judicata, collateral estoppel, or contractual estoppel. Plaintiff's motion for summary judgment and to strike Defendants' affirmative defenses and counterclaims is therefore DENIED in its entirety. Ordered by Judge William F. Kuntz, II on 3/27/2013. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DECISION AND ORDER
VICTOR M. SERBY,
Plaintiff,
09-cv-4229 (WFK)
-againstFIRST ALERT, INC. and BRK BRANDS, INC.,
Defendants.
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WILLIAM F. KUNTZ, II, United States District Judge
Victor M. Serby ("Plaintiff'), an attorney proceeding pro se, brought this action in the
Supreme Court of the State of New York, Kings County, against First Alert, Inc. ("First Alert")
and its subsidiary BRK Brands, Inc. ("BRK") (collectively "Defendants"), which then removed
the case to this Court. Plaintiff alleges Defendants manufacture, distribute, and sell various
smoke detectors without payment of royalties to Plaintiff, in breach of a pre-existing settlement
agreement from a prior, related, patent infringement litigation. See Notice of Removal, Dkt. 1,
at 7-10 ("Complaint") ~~ 10-16. Currently before the Court is Plaintiffs motion for summary
judgment and to strike Defendant's affirmative defenses pursuant to Rule 56 of the Federal
Rules of Civil Procedure. For the reasons that follow, Plaintiffs motion is denied in its
entirety.
BACKGROUND
The following facts are either undisputed or described in the light most favorable to
Defendants, the non-moving parties. See Capobianco v. City o/New York, 422 F.3d 47,50 n.l
(2d Cir. 2005). Plaintiff is the owner of U.S. Patent No. 5,444,434 ("the' 434 Patent"), entitled
"Extended Life Smoke Detector." Resp. of Defs.'/Counterclaimants to PI.'s St. of Material
Facts and Counterst. of Facts Pursuant to Local R. 56.1(b) ("Defs.' 56.1 St" and "Defs.' 56.1
Counterst."),l Dkt. 44, at ~ 1; Decl. of Gerard Schiano-Strain in Opp. to PI.' s Mot. for Summ.
J. ("Schaino-Strain Decl."), Ex. A (U.S. Patent No. 5,444,434). BRK is a manufacturer and
distributor of home safety and security products, including smoke detectors. Defs.' 56.1
Counterst., at ~ 1. Defendant First Alert is the parent company of Defendant BRK. Serby v.
First Alert, Inc., et aI., 09-cv-4229, 2011 WL 4464494, at *1 (E.D.N.Y. Sept. 26, 2011)
(Mauskopf, J.). BRK sells its products under the "First Alert" brand name. Id.
Previous Litigation and Settlement
In 1995, Plaintiff brought an action in the Eastern District of New York (the "1995
Action" alleging, inter alia, that Defendants' SA10YR model smoke detector infringed the
'434 Patent. PI.'s 56.1 St., at ~ 5; Defs.' 56.1 Counterst. at ~ 2. The SA10YR model smoke
detector had a cover attached to a base, which cover was not intended to be removed by the
consumer. Defs.' 56.1 Counterst. at ~ 3. The smoke,detector also had a battery compartment
containing a lithium battery with a working life of at least ten years. Serby, 2011 WL
4464494, at * 1.
Defendants filed an answer to the 1995 Action and interposed various affirmative
defenses, including; (1) they had not infringed the '434 Patent; (2) the '434 Patent was invalid
and unenforceable because it failed to satisfy the conditions of patentability and failed to
comply with the requirements of Title 35 of the United States Code; (3) the '434 Patent was
unenforceable due to Plaintiffs inequitable conduct; (4) Plaintiff was not entitled to enhanced
) Defendants submitted, as a single document, responses to Plaintiffs Statement of Material Facts and
a Counter-Statement of Material Facts pursuant to Local Rule 56.1. Defendants restarted the
numbering in the counter-statement, meaning that the document has two paragraphs 1, two paragraphs
2, etc. For clarity, the Court refers to the first half of the document as "Defs.' 56.1 St." and the second
(re-numbered) half of the document as "Defs.' 56.1 Counterst."
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damages because any infringement was neither willful, deliberate, nor intentional; and (5)
Plaintiffs conduct entitled Defendants to an award of attorneys' fees. Notice of Removal, Dkt.
1, at 27-32 (Defs.' answer in the 1995 Action). Defendants also asserted a counterclaim for a
declaration of patent non-infringement and invalidity. Id.
In April 1997, Plaintiff and Defendants entered into a Settlement, License and Mutual
Release Agreement (the "Settlement Agreement"), requiring Defendants to pay Plaintiff a 5%
royalty on Defendants' "net sales of smoke detectors which incorporate a lithium battery, meet
all other limitations of Claims 5 or 10 of the Serby Patent and which have a battery
compartment that is unopenable." Settlement Agreement at ~ 4. The Settlement Agreement
further stated that Defendants could manufacture, sell, distribute, or otherwise deal in lithium
batteries for use in smoke detectors, as well as smoke detectors with openable battery
compartments that require lithium batteries, without paying royalties. Id.
Current Dispute
Defendants made royalty payments under the Settlement Agreement until 2008.
Compl. at ~ 13. Defendants claim to have ceased the production and sale of the SAI0YR
smoke detector in response to changed industry standards. Defs.' 56.1 Counterst. ~ 7-10.
Defendants replaced the SA 1OYR model with the SA340 model smoke alarm. Defs.' 56.1
Counterst. ~ 10. Unlike the SAI0YR model, the SA340 model allows a consumer to open the
case, remove the battery compartment, and open the battery compartment. Id. at ~ 11. Because
ofthese changes, Defendants claim that the SA340 is not "unopenable" under the terms of the
Settlement Agreement and therefore they are not required to pay royalties on the SA340 model.
Id. at ~ 17. Plaintiff disagrees and asserts that Defendants are required to pay him royalties on
the SA340 under the terms of the Settlement Agreement. Pl.'s 56.1 St. at ~ 9.
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In August 2009, Plaintiff filed this action for breach of the Settlement Agreement in the
Supreme Court ofthe State of New York, Kings County, seeking $5 million in damages.
Compl., at ~ 18. Defendants removed the action to this Court pursuant to 28 U.S.C. § 1446(b)
on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Notice of Removal, at ~ 5. After
removing, Defendants filed an answer which alleged various affirmative defenses, including,
inter alia: (1) the complaint fails to state a cause of action; (2) Plaintiff breached the
Settlement Agreement by disclosing its terms and existence without first obtaining the prior
written approval of Defendants; (3) Plaintiffs claims are barred by the doctrines of waiver,
estoppel, and/or clean hands; (4) all claims of the '434 Patent are invalid under 35 U.S.C. § 101
because Plaintiffdid not invent or discover any new and useful process or machine, or any new
and useful improvements thereof; (5) all claims of the '434 Patent are invalid under 35 U.S.C.
§ 102 because, inter alia, Plaintiff is not the first inventor of the subject matter of the '434
Patent and the invention was known or used by others before Plaintiffs alleged invention; (5)
the '434 Patent is invalid under 35 U.S.C. § 103 because the differences between its subject
matter and prior art are obvious to a person having ordinary skill; (6) Plaintiff failed to disclose
material information that would have prevented issuance of the '434 Patent, rendering the
patent unenforceable; and (7) estoppel. Schiano-Strain Decl., Ex. E (Defs.' Answer).
Defendants also counterclaimed for a declaration ofunenforceability and invalidity of the '434
Patent. Id.
Presently before the Courtis Plaintiffs motion for summary judgment and to strike
Defendants' affirmative defenses. Plaintiff argues that Defendants' affirmative defenses and
counterclaims are barred by the doctrines of res judicata and collateral estoppel because they
were litigated and decided in the 1995 action when that action concluded with a Rule 41
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dismissal. Plaintiff further argues that these affirmative defenses and counterclaims are barred
by the Settlement Agreement.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, interrogatories,
admissions, and affidavits demonstrate that there are no genuine issues of material fact in
dispute and that one party is entitled to judgment as a matter oflaw. See Fed. R. Civ. P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986). A genuine issue of material fact exists "if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On a motion for summary judgment," [t]he role of the court is not to resolve disputed
issues of fact but to assess whether there are any factual issues to be tried. In determining
whether summary judgment is appropriate, this Court will construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all reasonable
inferences against the movant." Brodv. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal
quotation marks and citations omitted).
Once the movant has demonstrated that no genuine issue of material fact exists, then
"the nonmoving party must come forward with 'specific facts showing that there is a genuine
issue/or trial. '" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original). The non-moving party must
present "concrete evidence from which a reasonable juror could return a verdict in his favor."
Anderson, 477 U.S. at 256.
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ANALYSIS
I.
Choice of Law
As a preliminary matter, this Court must decide whether to apply the law of New York
or the law of the Federal Circuit. According to Plaintiff, New York law applies to this dispute
because the Settlement Agreement states that it "shall be governed by New York law." Pl.'s
Mot. for Summ. J. ("Pl.'s Mot.") at 3-5; Settlement Agreement ~ 12. Defendants, by contrast,
argue that Federal Circuit precedent applies because a federal district court is required to
follow the Federal Circuit in cases arising under the patent laws. Defs.' Mem. of Law in Opp.
to Pl.'s Mot. for Summ. J. ("Defs.' Opp."), Dkt. 44, at 13-15.
The United States Court of Appeals for the Federal Circuit has "exclusive jurisdiction
of an appeal from a final decision of a district court of the United States ... in any civil action
arising under, or in any civil action in which a party has asserted a compulsory counterclaim
arising under, any Act of Congress relating to patents." 28 U.S.C. § 1295(a)(1)? The
corollary of that jurisdictional grant is that a "district court must ... follow Federal Circuit
precedent in a case arising under the patent laws." Foster v. Hallco MIg. Co., Inc., 947 F.2d
469,475 (Fed. Cir. 1991). In determining which law should apply in particular cases, the
Federal Circuit has held that Federal Circuit law applies "to both substantive and procedural
issues intimately involved in the substance of enforcement of the patent right." Flex-Foot, Inc.
v. CRP, Inc., 238 F.3d 1362, 1365 (Fed. Cir. 2001) (internal quotation marks and citation
Plaintiff cites Holmes Group, Inc. v. Varnado Air Circulation Sys., Inc., 535 U.S. 826, 829-34 (2002),
for the proposition that the "Federal Circuit cannot assert jurisdiction over a case in which the
complaint does not allege a patent-law claim, but the answer contains a patent-law claim." Pl.'s Reply
Mem. of Law in Further Support of PI. 's Mot. for Summ. J. and to Strike Affirmative Defenses at l.
However, Holmes, which overturned established law in the Federal Circuit, was based on an earlier
version of28 U.S.c. § 1295(a)(l). In 2011, Congress amended the statute to explicitly restore the
Federal Circuit's jurisdiction over cases that contain patent law counterclaims. See Leahy-Smith
America Invents Act of2011, Pub. L. No. 112-29, § 19., 125 Stat. 284, 331 (2011). Consequently,
Plaintiffs reliance on Holmes is misplaced.
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omitted). "[T]he question of whether a settlement agreement bars a party from challenging the
validity of a patent in a subsequent action is intertwined with the substance of enforcement of a
patent right" and thus Federal Circuit law applies. Baseload Energy, Inc. v. Roberts, 619 F.3d
1357, 1361 (Fed. Cir. 2010).
This case raises the same issue as Baseload-whether a settlement agreement bars a
party from raising various affirmative defenses against a patent, including patent invalidity, in
a subsequent action. See id. Consequently, this Court is bound to apply the law of the Federal
Circuit.
II.
Res Judicata
"In its simplest construct, res judicata precludes the relitigation of a claim, or cause of
action, or any possible defense to the cause of action which is ended by a judgment of the
court." Foster v. Halleo Mfg. Co., 947 F.2d 469,476 (Fed. Cir. 1991). "This aspect of res
judicata, known in modem parlance as 'claim preclusion', applies whether the judgment of the
court is rendered after trial and imposed by the court or the judgment is entered upon the
consent of the parties." Id.. Once a judgment has been entered, a "plaintiff may not thereafter
maintain another action on the same 'claim,' and defenses that were raised or could have been
raised by the defendant in that action are extinguished." Id. at 478 (emphasis in original).
Plaintiff argues that Defendants are barred from relitigating many of the defenses they
interposed in the 1995 lawsuit "by the doctrines of res judicata and/or collateral estoppel."
Pl.'s Mot. at 1. To determine whether res judicata applies, this Court must determine whether
this suit presents the same claim as that of the 1995 action. Foster, 947 F.2d at 478.
A "claim" does not include mere "argument[s]" or "assertion[s]" but rather refers to the
"facts giving rise to the suit." Id. (citing Restatement (Second) of Judgments § 24). A claim
therefore "rests on a particular factual transaction." Id. "An assertion of invalidity of a patent
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by an alleged infringer is not a 'claim' but a defense to the patent owner's 'claim.'" Id. Thus,
in the patent context, the Federal Circuit has held that "[w]hile defenses to a 'claim' are
extinguished by application of the doctrine of claim preclusion, the facts related to the defense
[Le., whether or not a patent is invalid] do not in themselves constitute the transaction or
'claim.'" Id. at 479. For that reason, claim preclusion applies to a defense like patent
invalidity only if the underlying claim of patent infringement rests on the same transactional
facts as the earlier action. Id.; accord Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1326
(Fed. Cir. 2008).
"An essential fact of a patent infringement claim is the structure of the device or
devices in issue." Foster, 947 F.2d at 479; Acumed, 525 F.3d at 1326. Thus, in order for claim
preclusion to apply, the devices that allegedly infringe the patent in both suits must be
"essentially" the same. Foster, 947 F.2d at 479-80; Acumed, 525 F.3d at 1326; Nasalok
Coating Corp. v. Nylok Corp., 522 F.3d 1320, 1326-27 (Fed. Cir. 2008) ("[C]laim preclusion
[does] not bar [a] defendant's later [] action challenging those patents' validity if the devices
involved in the two suits were not 'essentially the same."'). The party asserting claim
preclusion bears the burden to show that the two devices are essentially the same. Foster, 947
F.2d at 480.
In this case, there is a genuine issue of material fact whether Defendants' SA340 model
smoke alarm is essentially the same as the SAI0YR model smoke alarm that was the subject of
the 1995 lawsuit. According to Defendants, the SA340 model allows the consumer to open the
case of the smoke alarm, remove the battery compartment from the smoke alarm, and open the
battery compartment to expose the batteries. Defs.' 56.1 Counterst. at ~~ 11-13. By contrast,
the SA 1OYR model, which was the subject of the 1995 litigation, had a cover that was not
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intended to be removed from the base and that could not be removed without causing structural
damage to the device. Id. at ~~ 3-4. In addition, the SAI0YR batteries were mounted directly
to the main circuit board, and thus could not be removed from the smoke alarm. Defs.' Opp. at
7. Because there is a genuine issue of material fact as to whether the two smoke alarms are
essentially the same, summary judgment on the basis of claim preclusion is inappropriate. See
Foster, 947 F.2d at 480; Nasalok, 522 F.3d at 1327.
III.
Collateral Estoppel
In addition to res judicata, Plaintiff argues that collateral estoppel bars Defendants from
raising any of the affirmative defenses or counterclaims raised in the 1995 Action. Under the
doctrine of collateral estoppel, "[w]hen an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination is essential to the judgment,
the determination is conclusive in a subsequent action between the parties, whether on the
same or a different claim." Foster, 947 F.2d at 480 (citing Restatement (Second) of Judgments
§ 27). However, "[w]here a judgment between parties is entered by consent prior to trial on
any issue, no issue may be said to have been fully, fairly or actually litigated." Id. (citing
Restatement (Second) of Judgments § 27, comment (e».
In this case, the 1995 Action ended in a settlement agreement and a Rule 41 dismissal
with prejudice. The issues raised in Defendants' affirmative defenses and counterclaims,
including the validity of Plaintiff's ' 434 Patent, were therefore never actually litigated, nor was
there any final judgment on them. Consequently, collateral estoppel does not bar Defendants
from relitigating these issues.
However, the Federal Circuit has recognized that there is a variation of issue
preclusion, sometimes called "contractual estoppel," that is based on consent judgments and
"that is not dependent on actual litigation of the matter." Id. (citing Restatement (Second) of
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Judgments § 27, comment (e)). Under this doctrine, "the [issue preclusive] effect results not
from the rule of [Restatement (Second) of Judgments] § 27 but from an agreement manifesting
an intention to be bound." Id. (internal editing omitted). "Thus, if a consent judgment, by its
terms, indicates that the parties thereto intend to preclude any challenge to the validity of a
particular patent, even in subsequent litigation involving a new cause of action, then that issue
can be precluded." Id. at 480-81; Flex-Foot, 238 F.3d at 1370 ("Once an accused infringer has
challenged patent validity, has had an opportunity to conduct discovery on validity issues, and
has elected to voluntarily dismiss the litigation with prejudice under a settlement agreement
containing a clear and unambiguous undertaking not to challenge validity and/or enforceability
of the patent in suit, the accused infringer is contractually estopped from raising any such
challenge in any subsequent proceeding.").
In determining whether a consent judgment precludes litigation of particular affirmative
defenses and counterclaims, such as the validity of patent, the Federal Circuit has held that
consent judgments "must be narrowly construed." Foster, 947 F.2d at 481; see also Diversey
Lever, Inc. v. Ecolab, Inc., 191 F.3d 1350, 1352 (Fed. Cir. 1999) ("[A]ny surrender ofthe right
to challenge validity of a patent is construed narrowly."). A court should not "speculate as to
the intent of the parties based on broad, general and ambiguous language." Foster, 947 F.2d at
481. Consequently, "a party does not waive its right to challenge the validity of a patent as to
future accused products absent a clear intent to do so." Ecolab, Inc. v. Paraclipse, Inc., 285
F.3d 1362, 1376 (Fed. Cir. 2002).
A number of decisions from the Federal Circuit shed light on the kind of language
required in a consent judgment to preclude a party from later challenging a patent's validity or
enforceability. For example, in Foster, the Federal Circuit held that the alleged infringer was
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not precluded from challenging the validity of the patent where the consent decree stated that
the patents were "valid and enforceable in all respects" and that the consent judgment was
"binding upon and constitutes res judicata between the parties." Foster, 947 F.2d at 481. In
that case, the Federal Circuit concluded that "the language of the decree is ambiguous with
respect to barring the defense of invalidity with respect to different devices charged to be
infringements," and thus that contractual preclusion was unavailable. Id. at 482. By contrast,
in Flex-Foot, the Federal Circuit found it indisputable that contractual estoppel applied where
an agreement contained explicit language that the alleged infringer agreed "not to challenge or
cause to be challenged, directly or indirectly, the validity or enforceability of [the] patent ... in
any court or other tribunal," and that the alleged infringer "waives any and all invalidity and
unenforceability defenses in any future litigation, arbitration, or other proceeding." Flex-Foot,
238 F.3d at 1364, 1367-68.
To determine whether to give the Settlement Agreement in this case preclusive effect,
this Court must therefore turn to the language of the agreement itself. Paragraph 10 of the
Settlement Agreement states:
First Alert and BRK, their officers, employees, agents, servants, successors and
assigns do hereby release and forever discharge Serby, his agents, successors and
assigns from any and all claims or actions which First Alert and BRK now have,
may have or may claim to have whether arising by tort, contract or statute, whether
the same be known or unknown or hereafter discovered, as of the date of this
Agreement, including, without limiting the generality of the foregoing, all
counterclaims which were raised or could have been raised in the Action brought by
Serby against First Alert and BRK except for any claims or actions arising for a
breach of this Agreement.
As the above cases demonstrate, this language is insufficient to raise contractual estoppel in a
future case between Plaintiff and Defendants concerning devices other than the SA 1OYR
model smoke alarm. Unlike in the cases already described, the Settlement Agreement in this
case did not explicitly agree state that the' 434 Patent was valid and enforceable, nor did it
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explicitly prohibit Defendants from challenging the '434 Patent's validity and enforceability in
any future actions. Defendants did agree to release and discharge Plaintiff from any or all
claims, including defenses and counterclaims, which were raised or could have been raised in
the 1995 action. But the Federal Circuit has repeatedly held that this kind of broad language
releasing "any and all claims" is insufficient, in the absence of a specific clause declaring that
the patent is valid and prohibiting the alleged infringer from challenging the patent in future
actions, is insufficient to waive a party's right to challenge the validity of a patent in future
actions regarding different products. Foster, 947 F.2d at 481; Baseload Energy, 619 F.3d at
1361; Ecolab, 285 F.3d at 1376. Consequently, this Court concludes that Defendants'
affirmative defenses and counterclaims are not barred by contractual estoppel.
IV.
Pleading Standards
Finally, Plaintiff contends that most of Defendants' affirmative defenses and
counterclaims must be struck because they fail to satisfy the pleading requirements of Bell At!.
Corp. v. Twombly, 550 U.S. 544, 553 (2007). Pl.'s Mot. at 7-8. It is unclear how Twombly,
which concerns "a plaintiff's obligation to provide the grounds of his entitlement to relief," 550
U.S. at 555 (internal editing omitted and emphasis added), applies to affirmative defenses
contained in a defendant's answer. Indeed, courts have split over this question, with some
extending Twombly's heightened pleading standard to affirmative defenses and others rejecting
its application to this context. See Lane v. Page, 272 F.R.D. 581, 590 n.5-6 (D.N.M. 2011)
(Browning, J.) (collecting cases).
This Court concludes that the pleading standards announced in Twombly do not apply
to affirmative defenses. Twombly addressed the requirements of a pleading under Rule 8(a) of
the Federal Rules of Civil Procedure, which explicitly requires "a short and plain statement of
the claim showing that the pleader is entitled to relief." As a resl,llt, a plaintiff must plead facts
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sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. By
contrast, Rule 8(c) governs the pleading of affirmative defenses. Fed. R. Civ. P. 8(c). Under
that provision, a defendant is required only to "state" the affirmative defenses it intends to
raise. Id There is no requirement under Rule 8( c) that a defendant plead any facts at all. See
Lane, 272 F.RD. at 591-94; Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1258 (D. Kan.
2011).
Pragmatic and policy considerations also weigh against imposing the same pleading
requirements on plaintiffs and defendants. Lane, 272 F.RD. at 595-96. Unlike a plaintiff,
who may have years to research and prepare a complaint, a defendant has a limited time within
which to file an answer. See Fed. R Civ. P. 12(a)(1)(A); see also Falley, 787 F. Supp. 2d at
1258-59; Holdbrookv. SAIA Motor Freight Line, LLC, No. 09-CV-02870, 2010 WL 865380,
at *2 (D. Colo. Mar. 8,2010). In addition, while a defendant is deemed to admit the
allegations in a complaint if he or she does not respond, a plaintiff may largely ignore an
answer without formal legal consequence. Lane, 272 F.RD. at 596. A defendant, by contrast,
risks waiving affirmative defenses that are omitted from its answer. See Fed. R. Civ. P.
12(g)(2), (h)(1)(A); Lane, 272 F.RD. at 596. For these reasons, whether to grant a motion to
strike "is viewed as determinable only after discovery and a hearing on the merits. A court
may therefore strike only those defenses so legally insufficient that it is beyond cavil that
defendants could not prevail upon them." Lane, 272 F.R.D. at 596 (internal quotation marks
and citation omitted). Consequently, a defendant should be permitted to seek discovery to
develop the "necessary factual background" for its defenses before "a premature evaluation of
a defense's merits." Trs. ofLocal 464A United Food & Commercial Workers Union Pension
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Fundv. Wachovia Bank, NA., No. 09-cv-668, 2009 WL 4138516, at *1 (D.N.J. Nov. 24,
2009).
v.
Conclusion
For the reasons described above, this Court finds that Defendants' affinnative defenses and
counterclaims are not barred by res judicata, collateral estoppel, or contractual estoppel.
Plaintiffs motion for summary judgment and to strike Defendants' affinnative defenses and
counterclaims is therefore DENIED in its entirety.
SO ORDERED
s/WFK
Dated: Brooklyn, New York
March 27,2013
HON. WILLIAM F. K
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