Prof. Glannon Civil Procedure: Responding to a Complaint (or Not!)
Here is a case from my Civil Procedure class which explains the rules of responding to a complaint–to strike and/or dismiss affirmative defenses and counterclaims. In this case, a plaintiff can strike and/or dismiss affirmative defenses by the defendant in its answer.
Case Name, Author, Citation
REIS ROBOTICS USA, INC. v. CONCEPT INDUSTRIES No. 06 CV 1430., 462 F.Supp.2d 897 (2006)
Plaintiff (Reis Robotics) filed a complaint against Defendant (Concept Industries) for breach of contract. The defendant answered the complaint, asserted 6 affirmative defenses, and brought 1 counterclaims against the Plaintiff. The Plaintiff then moves to strike and dismiss Concept’s affirmative defenses; strike portions of concept’s answer; and dismiss Concept’s counterclaims.
Same as Procedural History
Are Reis Robotics’ motion to (1) strike and dismiss concept’s affirmative defenses; (2) strike portions of Concepts answer; (3) dismiss concepts counterclaim sufficient
1) Yes, go to Reasoning for explanation
2) Yes, go to Reasoning ” ”
3) Yes, go to Reasoning ” ”
Rule 12(f) A motion to strike are generally disfavored but are nonetheless useful.
For the reasons set forth above, Reis’s motion to strike affirmative defenses (R. 13), motion to strike portions of Concept’s answer (R. 17), and motion to dismiss Concept’s counterclaim (R. 21) are granted to the extent that:
1. Concept’s first, second, third, fourth, and fifth affirmative defenses are stricken without prejudice;
2. Concept’s sixth affirmative defense is stricken with prejudice;
3. Paragraphs 5, 6, 7, 15, 16, and 20 of Concept’s answer are stricken without prejudice;
4. Concept’s negligent misrepresentation counterclaim is dismissed with prejudice;
5. Concept’s overpayment counterclaim is dismissed without prejudice.
Reis’s motions are denied in all other respects. Concept shall file and serve an amended pleading that conforms to this order within 30 days of the date of this order.
Reis Robotics motions were granted in part and denied in part.
Rule 12(f) MOTION TO STRIKE. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
Affirmative defenses are pleadings, so they must be determined by their sufficiency.
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