UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Felicia M. Desimini
v. Civil No. 14-cv-112-JD Opinion No. 2014 DNH 122 John F. Durkin, Jr. and Wilson, Bush, Durkin & Keefe, PC
O R D E R
Felicia M. Desimini, proceeding pro se, filed a complaint
against her former attorney, John F. Durkin, Jr., and his law
firm, Wilson, Bush, Durkin & Keefe, PC, alleging claims for legal
malpractice, negligent misrepresentation, and “superior
respondeat breach of fiduciary duties legal malpractice” that
arose from Durkin’s representation of her during her divorce
proceedings. The defendants filed their answer on April 4, 2014.
Desimini moves to strike the defendants’ affirmative defenses on
the grounds that the defenses are pleaded in a conclusory manner
and are insufficient as a matter of law. The defendants object.
After the defendants filed their objection to Desimini’s
motion to strike, Desimini filed a “Memorandum of Law in Support
of Plaintiff’s Motion to Strike Defendants’ Affirmative
Defenses.” The filing was docketed as Desimini’s reply to the
defendants’ objection. The defendants now move for leave to file
a surreply in which they argue that Desimini’s Memorandum is
procedurally defective and misapplies the law. The court has
considered both Desimini’s reply and the defendants’ surreply. Standard of Review
Under Federal Rule of Civil Procedure 12(f), “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Defendants must “affirmatively state any avoidance or affirmative
defense.” Fed. R. Civ. P. 8(c). “Rule 8(c) is designed to
provide plaintiffs with adequate notice of a defendant’s
intention to litigate an affirmative defense, thereby affording
an opportunity to develop any evidence and offer responsive
arguments relating to the defense.” Davignon v. Clemmey, 322
F.3d 1, 15 (1st Cir. 2003); see also 5 C. Wright & A. Miller,
Federal Practice & Procedure § 1274 (3d ed. updated Apr. 2014).
Courts generally do not view motions to strike affirmative
defenses favorably. See 5C C. Wright & A. Miller, Federal
Practice & Procedure § 1381 (3d ed. 2004); Raymond Weil, S.A. v.
Theron, 585 F. Supp. 2d 473, 489 (S.D.N.Y. 2008). Some courts,
however, require defendants to do more than simply name an
affirmative defense. Hallmark v. Cohen & Flamowitz, LLP, 2014 WL
2028426, at *3 (W.D.N.Y. May 16, 2014) (citing Godson v. Eltman,
Eltman & Cooper, P.C., 285 F.R.D. 255, 259 (W.D.N.Y. 2012)).
Other courts allow affirmative defenses to be pleaded in general
terms as long as the pleading is sufficient to put the plaintiff
on notice as to the nature of the defense. Barrett v. Americast,
Inc., 2014 WL 1689737, at *3 (N.D.W.Va. Apr. 29, 2014). Courts
in the Seventh Circuit apply a three-part test to determine
whether to strike an affirmative defense. Intercon Solutions,
2 Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1059 (N.D.
Ill. 2013).
District courts in the First Circuit apply different
standards to motions to strike affirmative defenses. Some
interpret Rule 12(f) to impose the same standard as Federal Rule
of Civil Procedure 12(b)(6). See Bryan Corp. v. Chemwerth, Inc.,
2013 WL 6489785, at *1 (D. Mass. Dec. 9, 2013). Others are more
lenient in evaluating the sufficiency of an affirmative defense.
Telecom Brokerage, Inc. v. Gryphone Telecom Consultants, LLC,
2014 WL 407725, at *2 (D. Mass. Jan. 31, 2014) (motions to strike
disfavored); Residential Funding Co., LLC v. Randle, 2013 WL
6195624, at *3 (D. Mass. Nov. 25, 2013) (holding that motion to
strike may be granted only if it is clear “beyond cavil” that the
defendant cannot succeed on the asserted defense); U.S. S.E.C. v.
Northern, 400 F. Supp. 2d 362, 364 (D. Mass. 2005) (same); United
States v. Belanger, 799 F. Supp. 2d 98, 101 (D. Me. 2011)
(affirmative defense may be struck if its legal insufficiency is
“clearly apparent”); Planalto v. Ohio Cas. Ins. Co., 2008 WL
2116608, at *9 (D. Me. May 19, 2008) (same). Another judge in
this court explained that different standards apply under Rules
8(a) and 8(c) and that affirmative defenses are adequately
pleaded if the answer provides fair notice of the issue.
Investmentsignals, LLC v. Irrisoft, Inc., 2011 WL 3320525, at *2
(D.N.H. Aug. 1, 2011) (citing Fed. R. Civ. P. Appx. Form 30).
3 Discussion
The defendants allege the following affirmative defenses in
their answer: that subject matter jurisdiction is lacking; that
their conduct was not the cause of the plaintiff’s alleged harm;
that they deny fault, liability, and breach of duty; that the
plaintiff’s comparative fault bars or reduces her damages; that
they contest the nature, extent, and cause of the plaintiff’s
injuries; that the complaint fails to state a cause of action;
that the plaintiff’s damages resulted from a superseding,
intervening cause; that “the claim” is barred due to the
plaintiff’s failure to mitigate her loss; that the complaint is
untimely and is time barred by the applicable statute of
limitations; that other parties are responsible for the
plaintiff’s loss; that the claims are barred by the doctrines of
waiver and estoppel; that fault must be apportioned under
DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006);
and that the defendants reserve the right to add defenses.
Desimini contends that the defendants have not sufficiently
pleaded their defenses and that they must be struck pursuant to
Rule 12(f).
If the Rule 12(b)(6) standard applied to motions to strike
affirmative defenses pursuant to Rule 12(f), the defendants’
affirmative defenses would be struck as insufficient. As is
noted above, however, the applicable standard is far from clear.
When they filed their answer, therefore, the defendants were not
on notice that any pleading standard applied other than the
4 requirement under Rule 8(c) that affirmative defenses must be
stated. Under the particular circumstances here, a lenient
approach is advisable.
Nevertheless, some of the asserted affirmative defenses
appear to be insufficient or immaterial even at this early stage
in the case. In the parties’ proposed discovery plan, filed on
April 20, 2014, and approved on May 5, 2014, they stated: “The
parties do not anticipate any jurisdictional questions.” That
statement contradicts the affirmative defense that the court
lacks subject matter jurisdiction. Therefore, Affirmative
Defense number 1 is struck as immaterial.
In addition, the defendants describe their theory of defense
in the discovery plan as follows: “Defendants provided legal
representation that was reasonable, appropriate, and consistent
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Felicia M. Desimini
v. Civil No. 14-cv-112-JD Opinion No. 2014 DNH 122 John F. Durkin, Jr. and Wilson, Bush, Durkin & Keefe, PC
O R D E R
Felicia M. Desimini, proceeding pro se, filed a complaint
against her former attorney, John F. Durkin, Jr., and his law
firm, Wilson, Bush, Durkin & Keefe, PC, alleging claims for legal
malpractice, negligent misrepresentation, and “superior
respondeat breach of fiduciary duties legal malpractice” that
arose from Durkin’s representation of her during her divorce
proceedings. The defendants filed their answer on April 4, 2014.
Desimini moves to strike the defendants’ affirmative defenses on
the grounds that the defenses are pleaded in a conclusory manner
and are insufficient as a matter of law. The defendants object.
After the defendants filed their objection to Desimini’s
motion to strike, Desimini filed a “Memorandum of Law in Support
of Plaintiff’s Motion to Strike Defendants’ Affirmative
Defenses.” The filing was docketed as Desimini’s reply to the
defendants’ objection. The defendants now move for leave to file
a surreply in which they argue that Desimini’s Memorandum is
procedurally defective and misapplies the law. The court has
considered both Desimini’s reply and the defendants’ surreply. Standard of Review
Under Federal Rule of Civil Procedure 12(f), “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Defendants must “affirmatively state any avoidance or affirmative
defense.” Fed. R. Civ. P. 8(c). “Rule 8(c) is designed to
provide plaintiffs with adequate notice of a defendant’s
intention to litigate an affirmative defense, thereby affording
an opportunity to develop any evidence and offer responsive
arguments relating to the defense.” Davignon v. Clemmey, 322
F.3d 1, 15 (1st Cir. 2003); see also 5 C. Wright & A. Miller,
Federal Practice & Procedure § 1274 (3d ed. updated Apr. 2014).
Courts generally do not view motions to strike affirmative
defenses favorably. See 5C C. Wright & A. Miller, Federal
Practice & Procedure § 1381 (3d ed. 2004); Raymond Weil, S.A. v.
Theron, 585 F. Supp. 2d 473, 489 (S.D.N.Y. 2008). Some courts,
however, require defendants to do more than simply name an
affirmative defense. Hallmark v. Cohen & Flamowitz, LLP, 2014 WL
2028426, at *3 (W.D.N.Y. May 16, 2014) (citing Godson v. Eltman,
Eltman & Cooper, P.C., 285 F.R.D. 255, 259 (W.D.N.Y. 2012)).
Other courts allow affirmative defenses to be pleaded in general
terms as long as the pleading is sufficient to put the plaintiff
on notice as to the nature of the defense. Barrett v. Americast,
Inc., 2014 WL 1689737, at *3 (N.D.W.Va. Apr. 29, 2014). Courts
in the Seventh Circuit apply a three-part test to determine
whether to strike an affirmative defense. Intercon Solutions,
2 Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1059 (N.D.
Ill. 2013).
District courts in the First Circuit apply different
standards to motions to strike affirmative defenses. Some
interpret Rule 12(f) to impose the same standard as Federal Rule
of Civil Procedure 12(b)(6). See Bryan Corp. v. Chemwerth, Inc.,
2013 WL 6489785, at *1 (D. Mass. Dec. 9, 2013). Others are more
lenient in evaluating the sufficiency of an affirmative defense.
Telecom Brokerage, Inc. v. Gryphone Telecom Consultants, LLC,
2014 WL 407725, at *2 (D. Mass. Jan. 31, 2014) (motions to strike
disfavored); Residential Funding Co., LLC v. Randle, 2013 WL
6195624, at *3 (D. Mass. Nov. 25, 2013) (holding that motion to
strike may be granted only if it is clear “beyond cavil” that the
defendant cannot succeed on the asserted defense); U.S. S.E.C. v.
Northern, 400 F. Supp. 2d 362, 364 (D. Mass. 2005) (same); United
States v. Belanger, 799 F. Supp. 2d 98, 101 (D. Me. 2011)
(affirmative defense may be struck if its legal insufficiency is
“clearly apparent”); Planalto v. Ohio Cas. Ins. Co., 2008 WL
2116608, at *9 (D. Me. May 19, 2008) (same). Another judge in
this court explained that different standards apply under Rules
8(a) and 8(c) and that affirmative defenses are adequately
pleaded if the answer provides fair notice of the issue.
Investmentsignals, LLC v. Irrisoft, Inc., 2011 WL 3320525, at *2
(D.N.H. Aug. 1, 2011) (citing Fed. R. Civ. P. Appx. Form 30).
3 Discussion
The defendants allege the following affirmative defenses in
their answer: that subject matter jurisdiction is lacking; that
their conduct was not the cause of the plaintiff’s alleged harm;
that they deny fault, liability, and breach of duty; that the
plaintiff’s comparative fault bars or reduces her damages; that
they contest the nature, extent, and cause of the plaintiff’s
injuries; that the complaint fails to state a cause of action;
that the plaintiff’s damages resulted from a superseding,
intervening cause; that “the claim” is barred due to the
plaintiff’s failure to mitigate her loss; that the complaint is
untimely and is time barred by the applicable statute of
limitations; that other parties are responsible for the
plaintiff’s loss; that the claims are barred by the doctrines of
waiver and estoppel; that fault must be apportioned under
DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006);
and that the defendants reserve the right to add defenses.
Desimini contends that the defendants have not sufficiently
pleaded their defenses and that they must be struck pursuant to
Rule 12(f).
If the Rule 12(b)(6) standard applied to motions to strike
affirmative defenses pursuant to Rule 12(f), the defendants’
affirmative defenses would be struck as insufficient. As is
noted above, however, the applicable standard is far from clear.
When they filed their answer, therefore, the defendants were not
on notice that any pleading standard applied other than the
4 requirement under Rule 8(c) that affirmative defenses must be
stated. Under the particular circumstances here, a lenient
approach is advisable.
Nevertheless, some of the asserted affirmative defenses
appear to be insufficient or immaterial even at this early stage
in the case. In the parties’ proposed discovery plan, filed on
April 20, 2014, and approved on May 5, 2014, they stated: “The
parties do not anticipate any jurisdictional questions.” That
statement contradicts the affirmative defense that the court
lacks subject matter jurisdiction. Therefore, Affirmative
Defense number 1 is struck as immaterial.
In addition, the defendants describe their theory of defense
in the discovery plan as follows: “Defendants provided legal
representation that was reasonable, appropriate, and consistent
with the standard of care.” As such, they did not include any of
the affirmative defenses asserted in their answer other than
their denials of fault and challenges to the sufficiency of
Desimini’s claims. Further, the defendants’ statute of
limitations defense does not comply with the requirements of
Federal Rule of Civil Procedure Appendix Form 30, paragraph 6.
To the extent Desimini challenges Affirmative Defense number
13 because it merely reserves the right to add defenses, that
issue is addressed in the discovery plan that provides September
8, 2014, as the deadline for amendment of the pleadings.
Similarly, the issues Desimini raises about defenses based on the
actions of others are matters that must be disclosed through the
5 discovery process and in accordance with the schedule set by the
discovery plan.
To avoid confusion in this case, particularly because the
plaintiff is proceeding pro se, the defendants shall file an
amended answer that asserts only those affirmative defenses that
they reasonably believe, at this stage, pertain to the claims
Desimini has alleged against them. They also shall provide a
concise statement of the factual bases for each affirmative
defense that is asserted in the amended answer. The defendants
are reminded that a scattershot approach to pleading is neither
favored nor effective because meritorious defenses may be
obscured by the onslaught of issues and allegations with little
merit.
Conclusion
For the foregoing reasons, the defendants’ motion for leave
to file a surreply (document no. 14) is granted. The plaintiff’s
motion to strike (document no. 5) is granted in part and denied
in part. Affirmative Defense number 1 is struck.
The defendants shall file an amended answer that complies
with the requirements of this order on or before June 13, 2014.
SO ORDERED.
____________________________ Joseph A. DiClerico, Jr. United States District Judge
May 30, 2014 cc: Felicia M. Desimini, pro se Joseph Gardner Mattson, Esq.