The United States of America v. Grimmel Industries, LLC et al
Filing
31
MEMORANDUM-DECISION & ORDER granting in part and denying in part PLTF's 20 Motion to Strike. The motion is granted, insofar as the following affirmative defenses are stricken: 1, 8, 14, 22, 24, 25, 35, and 44; and the motion is denied as to the following affirmative defenses: 2, 4, 7, 8, 9, 10, 12, 13, 18, 20, 28, 29, 32, 37, 39, 40, 41, 42. Signed by Magistrate Judge Christian F. Hummel on 08/06/2018. (jdp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
v.
No. 1:16-CV-1103
(NAM/CFH)
GRIMMEL INDUSTRIES, LLC;
RENSSELAER IRON & STEEL, INC.;
TONY GRIMMEL,
Defendants.
APPEARANCES:
OF COUNSEL:
U.S. Department of Justice,
Environmental Enforcement Section
P.O. Box 7611
Washington, DC 20044-7611
Attorneys for plaintiff
BRADLEY L. LEVINE, ESQ.
NATALIE G. HARRISON, ESQ.
DOJ-ENRD
408 Atlantic Avenue, Ste. 236
Boston, Massachusetts 02110
Attorneys for plaintiff
DONALD G. FRANKEL
Whiteman, Osterman Law Firm
One Commerce Plaza, Ste. 1900
Albany, New York 12260
Attorneys for defendant
MICHAEL G. STERTHOUS, ESQ.
TARA L. MACNEILL, ESQ.
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION & ORDER1
Presently pending before the undersigned is plaintiff’s Motion to Strike
1
The plaintiff’s motion to strike affirmative defenses is a nondispositive motion that a magistrate
judge is authorized to decide pursuant to 28 U.S.C. § 636(b)(a)(A). See, e.g., Genon Mid-Atlantic, LLC v.
Stone & Webster, Inc., 11 CV 1200 (HB), 2012 WL 1372150, at *3 n.5 (S.D.N.Y. Apr. 18, 2012; Madison
Maidens, Inc. v. American Mfrs. Mut. Ins. Co., 05 Civ. 4585 (JTS/JCF), 2006 WL 785270, at *1 n.1 (Mar.
27, 2006); St. Paul Fire & Marine Ins. Co. v. Health Fielding Ins. Broking Ltd., No. 91 Civ. 0748, 1996 WL
19028, at *11 (S.D.N.Y. Jan. 17, 1996).
Affirmative Defenses pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”)
12(f). Dkt. No. 20. Defendants opposed the motion. Dkt. No. 28. Plaintiff filed a reply.
Dkt. No. 29. For the reasons that follow, plaintiff’s motion is granted in part and denied
in part.
I. Background
Plaintiff commenced this action against defendants on September 9, 2016,
seeking to hold defendants liable for alleged violations of The Clean Water Act
(“CWA”), 33 U.S.C. § 1251, et seq. Plaintiff contends that, as relevant here, the CWA
“requires owners and operators of facilities engaged in industrial activities to obtain a
CWA permit for stormwater discharges from a point source into navigable waters; this
includes stormwater discharges from scrap metal facilities.” Dkt. No. 20-1 at 2 (citing
40 C.F.R. § 122.26(b)(14)(vi)).
Plaintiff seeks to strike twenty-five of defendants’ forty-four affirmative defenses:
first, second, fourth, seventh, eight, ninth, tenth, twelfth, thirteenth, fourteenth,
eighteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-eighth, twentyninth, thirty-second, thirty-fifth, thirty-seventh, thirty-ninth, fortieth, forty-first, fortysecond, and forty-forth. Dkt. No. 20-1; Dkt. No. 15. 2
II. Legal Standard
2
In its reply, the United States withdrew its motion insofar as it sought to strike the thirty-forth
affirmative defense. Dkt. No. 29 at 9.
2
Under Rule 12(f), a court “may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f).
“Courts generally disfavor Rule 12(f) motions and do not routinely grant them.” State of
N.Y. v. Almy Bros., Inc., 971 F. Supp. 69, 72 (N.D.N.Y. 1997) (citing William Z. Salcer,
Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated
on other grounds, 478 U.S. 1015 (1986)); see also Estee Lauder, Inc. v . Fragrance
Counter, Inc., 189 F.R.D. 269, 271 (S.D.N.Y. 1999) (“It is well-established in this Circuit
that ‘[a] motion to strike an affirmative defense under Rule 12(f) . . . for legal
insufficiency is not favored.’”)(quoting Salcer, 744 F.2d at 939)). “However, courts
should grant these motions when the defenses presented are clearly insufficient.”
Employers Ins. Co. of Wausau v. Crouse-Community Ctr., Inc., 489 F.Supp. 2d 176
(N.D.N.Y. Apr. 25, 2007). A motion to strike an affirmative defense under Rule 12(f)
“will not be granted unless it appears to a certainty that plaintiffs would succeed despite
any state of the facts which could be proved in support of the defense.” Salcer, 744
F.2d at 939. “In making its determination on a Rule 12(f) motion, a court ‘must accept
the matters well-pleaded as true and should not consider matters outside the
pleadings.’” Employers Ins. Co. of Wausau, 489 F. Supp. 2d at 179 (quoting County
Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152 (S.D.N.Y. 2002)
(internal quotations omitted)).
III. Discussion
A. Threshold Issues
3
The parties point out that many of these affirmative defenses were at issue in
similar litigation commenced before the District of Maine, United States v. Kennebec
Scrap Iron, Inc., No. 1:16-CV-191, 2016 W L 6651302, at *4 (D. Me, Nov. 10, 2016).3
Acknowledging the ruling of the District of Maine, defendants contend that the
“Kennebec court dismissed their eight, fourteenth, twenty-second, twenty-fourth, twentyfifth, thirty-fifth, and forty-fourth affirmative defenses in the Maine Action.” Dkt. No. 28
at 7. Thus, defendants acknowledge that the Kennebec Court dismissed the
equivalent of affirmative defenses fourteen, twenty-two, twenty-four, and forty-four
raised in this case. Dkt. No 28 at 7. As plaintiff points out, defendants also contend
that the Kennebec Court dismissed the equivalent of the eighth and thirty-fifth
affirmative defenses in this case; however, the Kennebec Court did not dismiss those
affirmative defenses on the motion to strike. Id. Further, defendants do not
acknowledge that the Kennebec Court also dismissed the equivalent of affirmative
defenses number one (“The Complaint fails to state a claim upon which relied can be
granted”), twenty-five ("The violations alleged are unenforceable because they are
overbroad”), and thirty-five (“bypass defense”).
Although defendants do not explicitly withdraw their opposition to this Court
striking those affirmative defenses, defendants note that they “are unaware of
3
The Kennebec Court dismissed, as relevant here, the following affirmative defenses: (1) “The
Complaint fails to state a claim upon which relief can be granted,” “Plaintiff’s claims fail because they are
moot,” (2) “Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches,” (3) “The violations
alleged are unenforceable because they are vague,” (4) “The violations alleged are unenforceable
because they are overbroad,” (5) “The Plaintiff seeks to apply impermissibly the Clean Water Act’s
Responsible Corporate Officer doctrine, which is limited by statute to criminal enforcement,” and
(6) “defendant is entitled to the by-pass defense. 2016 WL 6651302.
4
controlling authority in this District or Circuit refuting the Kennebec court’s decision in
that regard, and leaves resolution of these issues to the sound discretion of the Court.”
Id. Plaintiff points out that defendants also
state in their response that the Kennebec court struck their
Eighth (“Defendants have not violated the Clean Water Act.
There are no ongoing violations.”) and their Forty-Fourth
(“Defendants reserve the right to assert additional affirmative
defenses based on information gathered during discovery.”)
affirmative defenses, and admit they have no basis to argue
for a different result in this Court. The Kennebec court,
however, did not strike these two defenses. Indeed, the
Defendants did not even assert the latter defense in that
case. But Defendants concede these defenses should be
stricken in this case. We agree.
Dkt. No. 29 at 4 (citing Dkt. No. 28 at 7).
The Court disagrees with plaintiff’s argument that defendants have conceded
that these affirmative defenses should be stricken, as the Court does not interpret this
language as seeking to withdraw its opposition to the striking of these affirmative
defenses; instead, defendants acknowledged the Kennebec holding and deferred to the
Court. Thus, the Court will review whether plaintiff is entitled to have these affirmative
defenses stricken.
Another issue the Court must first address is the government’s assertion that a
heightened pleading standard should apply in reviewing affirmative defenses. As
plaintiff acknowledges, the Second Circuit has not decided whether Iqbal-Twombly’s4
heightened pleading standard applies to affirmative defenses. Thus, the Court declines
to go beyond that Court’s dictate; however, as this Court has previously advised, even
4
See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
5
“[w]ithout deciding whether defendants need to be held to this higher standard, it is
prudent to at least require defendants to include enough language to provide plaintiff
with ‘fair notice’ of defenses, in line with the prevailing pleading standard in the Second
Circuit . . . .” Thornton v. County of Albany, 9:14-CV-679 (DNH/CFH), 2016 WL
5793714, at *5 (N.D.N.Y. Oct. 4, 2016) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 512 (2002)). With that standard in mind, the Court proceeds to its review of the
motion to strike.
B. Affirmative Defenses 1, 24, 25
Affirmative defense number one states, “[t]he Complaint fails to state a claim
upon which relief can be granted.” Dkt. No. 15 at 24. Affirmative defense number
twenty-four states “[t]he violations alleged are unenforceable because they are vague.”
Id. at 27. Affirmative defense number 25 states, “[t]he violations are unenforceable
because they are overbroad.” Id. Plaintiff argues that affirmative defense number one
should be stricken because (1) the complaint sets forth “a well-pleaded claim for relief,”
(2) “it is actually not an affirmative defense at all, but rather a denial of the plaintiff’s
allegations,” and (3) the claims are well-pleaded. Dkt. No. 20-1 at 7. The Court agrees
that affirmative defense number one must be stricken. For the reasons stated in
plaintiff’s memorandum of law and those in the Kennebec decision, plaintif f has set
forth a well-pleaded claim. Dkt. Nos. 20-1 at 7-8; 28 at 21-22. Accordingly, affirmative
defense number one is stricken.
Affirmative defenses twenty-four and twenty-five must be stricken for similar
6
reasons. These affirmative defenses claim, respectively, that the complaint is vague
and overbroad. Dkt. No. 15. However, much as the Court has determined above, the
complaint sets forth a short an plain statement showing the plaintiff is entitled to relief
as is required under Federal Rule of Civil Procedure 8. Accordingly, for this reason,
and those stated in plaintiff’s memorandum of law, Dkt. No. 20-1 at 9, plaintiff’s motion
to strike affirmative defenses twenty-four and twenty-five is granted.
C. Affirmative Defenses 2, 20
Affirmative defense number two states: “[t]he Court lacks jurisdiction under the
provisions on the Clean Water Act.” Dkt. No. 15 at 24. Plaintiff argues that affirmative
defense number two must be stricken because CWA § 309(b) “expressly provides that
federal district courts have jurisdiction over cases of this type[.]” Dkt. No. 20-1 at 10.
Plaintiff contends that “[t]he fact that EPA authorized the State of New York to issue
permits under the CWA does not mean the United States relinquished its authority to
enforce those permits. Nor does it mean this Court loses jurisdiction to decide CW A
cases properly brought in this District.” Id. (citation omitted). In response, defendants
contend that the government does not provide “any demonstration of the absence of
any facts or any question of law presented by these defenses” nor “controlling authority
in support of its claims.” Dkt. No. 28 at 11.
Affirmative defense number twenty states that the relief plaintiff seeks “is not
permitted under the Clean Water Act.” Dkt. No. 15 at 26. Plaintiff contends that CWA
309(b) explicitly provides that the “United States can seek to enjoin violations of the
7
statute” and that “a district court may issue civil penalties for violations of the CWA.”
Dkt. No. 20-1. Defendants set forth the same arguments as in response to affirmative
defense number 1.
In Kennebec, the Court denied plaintiff’s motion to strike these affirmative
defenses, noting that the government did not demonstrate that it would prevail despite
any state of facts which could be proved in support of the defense, noting that it was
premature for the Court to make that determination. Dkt. No. 28 at 23. This Court
agrees. It cannot be said, at this very early stage, that there is no question of fact or of
law presented by these defenses. Accordingly, the motion to strike affirmative defense
numbers two and twenty is denied.
D. Affirmative Defense 4
Affirmative defense number four states that “[p]laintiff lacks standing to bring this
action.” Dkt. No. 15 at 24. Plaintiff contends that it is well-settled Supreme Court
precedent that the United States has standing “in actions where the United States is
enforcing policies to protect the general welfare.” Dkt. No. 20-1 at 11. The Kennebec
Court declined to strike this affirmative defense, noting that although it may be the case
that
“it is unlikely that discovery between the parties will yield
information relevant to these well-settled legal matters’ . . .
unlikelihood is not enough. To strike these defenses, the
Court must determine that the Government will prevail ‘despite any state of facts which
could be proved in support of the defense . . . and that these defenses ‘present[] no
question of law or fact that the court must resolve[.]”
Id. (citations omitted).
8
The Court agrees with plaintiff that it is well-settled that the government has
standing to enforce general welfare policies; however, at these early pleading stages,
given the high burden the plaintiff must prove, the Court cannot say that there is no fact
or law that could exist, and plaintiff does not specify prejudice it would suffer by the
Court’s denial of the motion to strike this affirmative defense at this time. Accordingly,
plaintiff’s motion to strike affirmative defense number four is denied.
E. Affirmative Defenses 7, 9, 10, 18, 28, 29, 37, 40
Plaintiff moves to strike affirmative defense numbers seven, nine, ten, eighteen,
twenty-eight, twenty-nine, thirty-seven, and forty. Dkt. No. 20-1 at 12. Plaintiff contends
that these defenses must be stricken because they are redundant. Dkt. No. 20-1 at 12.
Further, plaintiff contends that these defenses are “merely denials of the plaintiff’s
allegations in the form of an affirmative defense.” Id. Defendants deny that these
affirmative defenses are redundant, arguing instead that they “are wholly distinct
allegations,” and that cases from within this Circuit show that “courts are reticent to
strike even a seemingly redundant defense akin to a general denial in the absence of
prejudice.” Dkt. No. 28 at 13 (citing Saratoga Harness Racing, Inc. v. Veneglia, 94-CV1400, 1997 WL 135946, at *7 (N.D.N.Y. Mar. 18, 1997); Oppel v. Empire Mut. Ins. Co.,
92 F.R.D. 494, 498 (S.D.N.Y. 1981). The Court agrees with defendants for the reasons
stated in defendants’ brief. Although these defenses are general denials, due to the
hesitancy this Court has in striking affirmative defenses, and the fact that plaintiff has
not demonstrated prejudice, plaintiff’s motion is denied as to affirmative defenses
9
numbers seven, nine, ten, eighteen, twenty-eight, twenty-nine, thirty-seven, and forty.
F. Affirmative defenses 8, 14, 22, 24, 35, 44
Defendants acknowledge that the Kennebec Court dismissed in its case the
equivalent of affirmative defenses fourteen, twenty-two, twenty-four, and forty-four
raised in this case. Dkt. No 28 at 7. Defendants also contend that the Kennebec Court
dismissed the equivalent of the eighth and thirty-fifth affirmative defenses in this case;
however, the Kennebec Court did not dismiss those affirmative defenses on the motion
to strike. Id. Further, defendants did not acknowledge that the Kennebec Court also
dismissed the equivalent of affirmative defenses number one5 (“The Complaint fails to
state a claim upon which relied can be granted”), twenty-five ("The violations alleged
are unenforceable because they are overbroad”), and thirty-five (“bypass defense”).6
Affirmative defense fourteen states “plaintiff’s claims fail because they are moot.”
Dkt. No. 15 at 25. The Court agrees that this affirmative defense must be stricken for
the reasons stated in plaintiff’s brief. As noted in Kennebec, “[m]ootness is not a viable
defense to this action because it is black-letter law that the Government may seek
penalties for wholly past violations of the Clean Water Act.” Kennebec, 2016 W L
5
Affirmative defense number one is addressed earlier in this Decision. Supra at 6.
6
The Kennebenc Court dismissed seven affirmative defenses: “The Complaint fails to state a
claim upon which relief can be granted” (number 1 in this case), “Plaintiff’s claims fail because they are
moot” (#14), “Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches” (#22),“The
violations alleged are unenforceable because they are vague” (#24), “The violations alleged are
unenforceable because they are overbroad” (#25), “The Plaintiff seeks to apply impermissibly the Clean
Water Act’s Responsible Corporate Officer doctrine, which is limited by statute to criminal enforcement”
(#31), and “defendant is entitled to the by-pass defense” (#35).
10
6651302, at *3 (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 58 (1987); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 211 n.5 (2000) (Scalia, J., dissent). Accordingly, the Court grants plaintiff’s
motion to strike affirmative defense fourteen.
Plaintiff asks the Court to strike affirmative defense number eight, contending
that this affirmative defense is moot and “essentially the same” as affirmative defense
fourteen. Dkt. No. 20-1 at 12-13. Affirmative defense number eight states, “Defendants
have not violated the Clean Water Act. There are no ongoing violations.” Dkt. No. 15
at 25. Further, plaintiff argues that whether the violations have ceased or are ongoing
“is of no consequence,” and, as it argued for affirmative defense fourteen, that
“mootness is not a viable defense because ‘it is black-letter law that the Government
may seek penalties for wholly past violations of the Clean Water Act.” Dkt. No. 20-1 at
13. Defendants do not address this affirmative defense on the merits. The Court
agrees with plaintiff, for the reasons discussed in review of affirmative defense fourteen,
that striking this affirmative defense is proper. See Kennebec, 2016 W L 6651302, at
*3.
Affirmative defense twenty-two states that plaintiff’s “claims are barred, in whole
or part, by the doctrine of laches.” Dkt. No. 15 at 26. As pointed out by plaintiff, it is
well-settled law that the defense of laches cannot be asserted against the government
in enforcement actions. See, e.g., United States v. Manhattan-Westchester Med.
Services, P.C., 06 Civ. 7906 (WHP), 2008 WL 241079, at *4 (S.D.N.Y. Jan 28, 2008)
(“The affirmative defense[] of laches . . . [is] . . . unavailable against the Government)
11
(citing United States v. Agnell, 292 F.3d 333, 338 (2d Cir. 2002) (“Laches is not
available against the government when it undertakes to enforce a public right or protect
the public interest.”)). The Court grants plaintiff’s motion as to affirmative defense
number twenty-two.
Affirmative defense number twenty-four states that the violations “are
unenforceable because they are vague.” Dkt. No. 15 at 27. Plaintiff argues that,
pursuant to Fed. R. Civ. P 8(a)(2), the complaint must contain a plain statement
demonstrating relief, and that the complaint suffices to meet that standard. Dkt. No. 201 at 9. The Court agrees. Defendants offer no support for their defense that the
complaint is vague, and, thus, unenforceable. Accordingly, plaintiff’s motion to strike
affirmative defense number twenty-four is granted.
Affirmative defense thirty-five contends that defendants are entitled to the bypass defense.” Dkt. No. 15 at 28. Plaintiff argues that this defense should be stricken
“because none of the United States’ claims are based on the bypass provision of the
CWA.” Dkt. No. 20-1 at 15. Plaintiff directs the Court to Kennebec decision, where the
Court struck the identical affirmative defense for this reason. Affirmative defense thirtyfive is one that defendants left in the “sound discretion of the Court.” Dkt. No. 28 at 7.
For the reasons stated in plaintiff’s brief, and set forth by the Court in Kennebec, 2016
WL 6651302, at *4, plaintiff’s motion to strike affirmative defense number thirty-five is
granted.
In affirmative defense forty-four, the defendants “reserve[d] the right to assert
additional affirmative defenses gathered during discovery.” Dkt. No. 15 at 29. Plaintiff
12
argues that this defense must be stricken as it “contravenes the Federal Rules of
Procedure.” Dkt. No. 20-1 at 16. Plaintiff explains that Rule 8(c) requires parties to
state affirmative defenses in the answer, and any additional affirmative defenses could
be added by seeking to amend the answer under Rule 15.
The Court finds that dismissal is proper for the reasons set forth in plaintiff’s brief
and in County Vanlines, Inc. v. Experian Info. Solutions, Inc., cited by plaintiffs. 205
F.R.D. 148, 158 (S.D.N.Y. 2002) (“‘if by inclusion of such defense [reserving right to add
affirmative defenses], defendant wishes to reserve the unilateral right to add new and
different affirmative defenses as they become known to it at indeterminate times in the
future, any such addition would violate, inter alia, the fair notice requirement of [Fed. R.
Civ. P. 8] and circumvent [Fed. R. Civ. P. 15].’”) (quoting Boss Prods. Corp. v. Tapco
Int’l Corp., No 00 Civ. 0689, 2001 WL 135819, at *3 (W.D.N.Y. Feb. 16, 2001) (striking
similar affirmative defense, noting, if by seeking to “reserve the right to add additional
Affirmative Defenses as discovery proceeds in this case,” the defendant was attempting
to “reserve the unilateral right to add new and different affirmative defenses as they
become known to it at indeterminable times in the future, any such addition would
violate, inter alia, the fair notice requirement of [Fed. R. Civ. P.] 8 and circumvent [Fed.
R. Civ. P.] 15.”). Plaintiff’s motion to strike affirmative defense forty-four is granted.
G. Affirmative Defenses 12, 13, 32, 39, 41, 42
Plaintiff argues that affirmative defenses twelve, thirteen, thirty-two, thirty-nine,
forty-one, and forty-two must be stricken because they fail to provide plaintiff with fair
13
notice of the defenses. Dkt. No. 20-1 at 13. Plaintiff argues that the twelfth affirmative
defense (“Defendants have no liability for acts or omissions undertaken by or at the
direction of or sufferance of any governmental authority or other expert.”) does not
provide notice because it “fails to identify the governmental authority or expert to which
it refers, or how directions from authority or expert leads to the conclusion that has no
liability.” Id. Affirmative defense thirteen (“Any alleged violations were caused by thirdparties over which Defendants exercised no authority or control”), the government
argues, “provides no clue as to the identity of the alleged third parties.” Id. Affirmative
defense thirty-two (“Some of the conditions alleged by the government to be violations
were the result of Acts of God.”) “does not provide any inkling as to what acts of God it
refers.” Id. at 14. Affirmative defense thirty-nine (“Plaintiff’s claims are barred for failure
to exhaust administrative remedies”) “does not indicate to what administrative remedies
it refers” and the government further argues that “there are no administrative remedies
that apply in a case such as this[.]” Id. Affirmative defense forty-one (“Plaintiff has
failed to join all parties necessary to this action so that complete relief can be rendered
herein, to Defendants’ prejudice herein”) failed to identify the parties. Id. Affirmative
defense forty-two (“Defendants have resolved all potential liability for Plaintiff’s
allegations with the State of New York”) fails to “hint to what enforcement actions
Grimmel is referring.” Id.
Defendants argue that plaintiff “does not provide any standard upon which to
determine what constitutes ‘fair notice’ of an affirmative defense, nor how, if at all, it is
prejudicial.” Dkt. No. 28 at 14. Further, defendants contend that because the def enses
14
provide plaintiff with fair notice of the nature of the defense, that the defenses are
stated “in general terms” does not render these defenses insufficient, and further, “at
the pleading stage, Plaintiff is not entitled to exhaustive knowledge of the full basis and
scope of affirmative defenses.” Id. In reply, plaintiff contends there is a split among the
courts in this Circuit and elsewhere, with some courts holding that affirmative defenses
should be stricken if conclusory and others holding “that defendants need not assert
any facts in support of their affirmative defenses.” Dkt. No. 29 at 8. In view of this split,
plaintiff contends that it is not seeking the Court to strike the above affirmative defenses
“solely on the fact that the Defendants’ answer failed to provide any factual support for
such defenses” but that defendants also “failed to provide any facts in support of these
defenses in response to the motion to strike. Apparently, Defendants are unaware of
any facts that support these defenses.” Id. Thus, plaintiff urges the Court to strike
these defenses.
Although the Court acknowledges that defendants defenses here are far from
specific and cannot be said to be an ideal pleading, the Court cannot say that they fail
to give plaintiff fair notice of the defenses. Plaintiffs do not explain why the deficiencies
plaintiffs point out – for example, defendants’ failure to identify any third parties in
affirmative defense number thirteen – cannot be resolved through discovery. Further,
“there is no requirement under 8(c) that a defendant plead any fact. Moreover,
‘affirmative defenses which are essentially boilerplate do give [a] plaintiff fair notice.”
Figueroa v. Rsquared NY, Inc., No. 14-CV-4390 (ADS)(ARL), 2015 W L 3936256, at *3
(E.D.N.Y. June 26, 2015). Further, plaintiffs do not demonstrate the existence of
15
prejudice.
When considering the sufficiency of the defense under the
third prong of the analysis, “increased time and trial may
constitute sufficient prejudice to warrant granting [a motion to
strike].” 756 F.Supp. 2d at 425 (citing Estee Lauder, Inc. v.
Fragrance Counter, Inc., 189 F.R.D. 269, 272 (S.D.N.Y.1999)). However, “mere
assertions by the moving party that he is prejudiced are insufficient.”
Figueroa, 2015 WL 3936256, at *3 (quoting County Vanlines, Inc., 205 F.R.D. at 153.
Accordingly, plaintiff’s motion to strike affirmative defense numbers twelve, thirteen,
thirty-two, thirty-none, forty-one, and forty-two is denied.
IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby ORDERED, that
plaintiff’s Motion to Strike, Dkt. No. 20, is granted in part and denied in part:
(1) The motion is GRANTED, insofar as the following affirmative defenses are
stricken: 1, 8, 14, 22, 24, 25, 35, and 44; and
(2) The motion is DENIED as to the following affirmative defenses: 2, 4, 7, 8, 9,
10, 12, 13, 18, 20, 28, 29, 32, 37, 39, 40, 41, 42.
IT IS SO ORDERED.
Dated: August 6, 2018
Albany, New York
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