Desimini v. Durkin

               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE



Felicia M. Desimini

     v.                             Civil No. 14-cv-112-JD
                                    Opinion No. 

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, 

 (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, 

 (S.D.N.Y. 2008).        Some courts,

however, require defendants to do more than simply name an

affirmative defense.    Hallmark v. Cohen & Flamowitz, LLP, 

, at *3 (W.D.N.Y. May 16, 2014) (citing Godson v. Eltman,

Eltman & Cooper, P.C., 

 (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., 

, 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,

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Inc. v. Basel Action Network, 

 (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.,

, 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,

, at *2 (D. Mass. Jan. 31, 2014) (motions to strike

disfavored); Residential Funding Co., LLC v. Randle, 

, 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, 

 (D. Mass. 2005) (same); United

States v. Belanger, 

 (D. Me. 2011)

(affirmative defense may be struck if its legal insufficiency is

“clearly apparent”); Planalto v. Ohio Cas. Ins. Co., 

, 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., 

, at *2

(D.N.H. Aug. 1, 2011) (citing Fed. R. Civ. P. Appx. Form 30).




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                           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., 

 (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

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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

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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.


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