The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GORDON GRAHAM, et al.
Plaintiffs,
-V- Civ. No. 1:17-CV-1092
(TIM/DJS)
S| STATE UNIVERSITY OF NEW YORK AT
ALBANY and MARK BENSON,
Defendants.
APPEARANCES: OF COUNSEL:
RIMON, P.C. BERNAYS T. BARCLAY, ESQ.
Attorneys for Plaintiffs
255 Patroon Creek Boulevard #4467
Albany, New York 12206
ALVAREZ & GONZALEZ, LLP CARLOS F. GONZALEZ, ESQ.
Attorneys for Plaintiffs
One Flagler Building
14N.E. lst Avenue
Suite 1105
Miami, Florida 33132
HON. LETITIA JAMES MARK G. MITCHELL, ESQ.
New York State Attorney General Assistant Attorney General
“! Attorney for Defendants
The Capitol
Albany, NY 12224
DANIEL J. STEWART
United States Magistrate Judge
DECISION AND ORDER
Presently pending 1s Plaintiffs’ Motion to Strike Affirmative Defenses. Dkt. No.
97. Defendants oppose the Motion. Dkt. Nos. 98 & 103. Plaintiffs have filed an
additional letter brief in support of their Motion. Dkt. No. 99.! For the reasons which
follow, the Motion is Denied.
I. BACKGROUND
The operative pleading in this case is the Second Amended Complaint which was
filed November 12, 2019. Dkt. No. 95. Defendants filed an Answer to the Second
Amended Complaint on November 26, 2019. Dkt. No. 96. The Answer contains
twenty-two specifically denominated affirmative defenses. Jd. at J] 12-33. Plaintiffs
“| now move to strike all of those defenses. Dkt. No. 97-1, Pls.’ Mem. of Law at p. 4.
The Answer to the Second Amended Complaint is the fifth Answer that has been
filed in this case. On November 29, 2017, Defendant State University of New York at
Albany initially filed an Answer on behalf of itself asserting 12 affirmative defenses.
Dkt. No. 17. Each of those defenses is asserted in the present Answer. Compare Dkt.
No. 17 with Dkt. No. 96. Following motion practice, both Defendants filed an Answer
asserting thirteen affirmative defenses, all of which are included in the current Answer.
Compare Dkt. No. 49 with Dkt. No. 96. Following the filing of an Amended
Complaint, Defendants filed an Answer asserting defenses, all of which are included in
| A duplicate of that letter was also filed at Docket Number 100.
the present Answer as well. Compare Dkt. No. 59 with Dkt. No. 96. An Amended
Answer to the Amended Complaint was then filed, with Plaintiffs’ consent, Dkt. No 80-
1, again asserting numerous defenses that are the same as those now raised. Compare
Dkt. No. 80 with Dkt. No. 96.
II. ANALYSIS
FED. R. Civ. P. 12(f)(2) provides that “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter . .
. 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.” The Answer at issue
here was filed on November 26, 2019. Dkt. No. 96. This Motion was not filed until
“lJ anuary 29, 2020, Dkt. No. 97, which is outside the 21-day time limit imposed by Rule
12. The Motion, therefore, is clearly untimely. D.W.M. by Moore v. St. Mary Sch.,
2019 WL 4038410, at *4 n.2 (E.D.N.Y. Aug. 27, 2019); Friedman v. Geico Gen. Ins.
Co., 2017 WL 10109879, at *3 (E.D.N.Y. Jan. 13, 2017).
Plaintiffs concede that the Motion is untimely. Dkt. No. 99 at p. 2 (“Plaintiffs’
counsel do not contend that their motion to strike defenses was filed within the time”
under Rule 12(f)(2)). They instead appear to contend that the 21-day time period is not
applicable here because they make the Motion as a dispositive motion which is timely
under the Court’s scheduling order for such motions. /d. This argument is not
persuasive. Rule 12(f)(2) imposes a clear 21-day time limit. It contains no exemption
from that limitation for motions a party may deem dispositive. “The Court declines to
allow Plaintiff[s] to circumvent the Federal Rules of Civil Procedure by construing
Plaintiff[s’] untimely Motion to Strike as a [dispositive motion].” Jones v. Nutiva, Inc.,
2016 WL 5210935, at *12 (N.D. Cal. Sept. 22, 2016).?
Despite the untimeliness of the Motion, the Court retains the discretion to
consider the merits of such a motion. IMG Fragrance Brands, LLC v. Houbigant, Inc.,
2009 WL 5088750, at *1 (S.D.N.Y. Dec. 18, 2009). Based on a number of factors, the
Court declines to exercise that discretion here.
First, Plaintiffs’ Motion is vastly over-inclusive in that it seeks to strike all of the
affirmative defenses raised in the Answer. PIl.’s Mem. of Law at pp. 4 & 9-27. Even
“la cursory review of the pleadings and record in the case show that, at the very least,
some of the asserted defenses would easily withstand such a motion. Defendants, for
example, assert a defense that the Complaint fails to state acclaim. Dkt. No. 96 at ¥ 12.
“Including an affirmative defense of failure-to-state-a-claim in an answer is a routine
practice which is rarely, if ever, stricken by the court as legally insufficient.” State of
N.Y. v. Almy Bros., 971 F. Supp. 69, 72 (N.D.N.Y. 1997). Several courts have found
that “a failure-to-state-a-claim defense is not vulnerable to motions to strike because the
defense is analogous to a general denial and its inclusion, although likely redundant,
does not prejudice plaintiffs.” Coach, Inc. v. Kmart Corps., 756 F. Supp. 2d 421, 432
? Nor is it clear that this could properly be considered a dispositive motion since striking the affirmative defenses
would not automatically entitle Plaintiffs to relief. 1
(S.D.N.Y. 2010) (citing cases).
Plaintiff Graham asserts a section 1983 constitutional claim against Defendant
Benson, Dkt. No. 95 at 4 83-93, to which Benson has asserted a qualified immunity
defense. Dkt. No. 96 at § 15. That defense is clearly available to such a claim. A
“| motion to strike “is not a good fit for resolving issues like qualified immunity which
often turn on facts yet to be developed.” Atkins v. Pickard, 298 Fed. Appx. 512, 513
(7th Cir. 2008). “If [Plaintiffs] wish[] to challenge [Defendant’s] assertion of qualified
immunity, [they] should do so by developing a factual record through discovery to
support [their] argument.” Kiss v. Cook, 2017 WL 3738646, at *4 (N.D.N.Y. Aug. 29,
2017).
Given that Plaintiffs made no effort to specifically tailor their Motion to
particular defenses, the Court declines, in the interests of judicial economy, to undertake
a review of each defense.
Second, as the Court’s discussion of the various Answers previously filed shows,
many of the defenses Plaintiffs now seek to strike have been pled by Defendants from
the outset of this case. See Point I, supra. Plaintiffs readily concede this fact. See,
e.g., Dkt. No. 97-1 at pp. 9-12. “To prevail on a motion to strike, the movant must
show that he will be prejudiced by inclusion of the defense.” Kiss v. Cook, 2017 WL
3738646, at *3 (internal alteration and citations omitted); see also GEOMC Co. v.
Calmare Therapeutics Inc., 918 F.3d 92, 97 (2d Cir. 2019) Gidentifying as a relevant
factor in considering a motion to strike whether “permitting the allegations to stand
would result in prejudice to the movant’). Despite the fact that Defendants had
previously pled many of these same defenses, Plaintiffs have not until now sought to
strike these defenses. Given that more than two years have elapsed since a number of
“| these defenses were first asserted without challenge, Plaintiffs clearly cannot show that
they have been prejudiced by them.
For these reasons, the Motion is denied as untimely.
II. CONCLUSION
ACCORDINGLY, it is
ORDERED, that Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses
DENIED; and it is further
ORDERED, that the Clerk of the Court shall provide a copy of this Order to the
parties.
Dated: March 6, 2020
Albany, New York y :
Dafa ie Xart) “
U.SMagistrate Judge