United States District Court, D. Connecticut
A. BOLDEN UNITED STATES DISTRICT JUDGE.
GEOMC Co., Ltd. (“GEOMC”), brought this lawsuit
against Defendant, Calmare Therapeutics, Incorporated
(“CTI”), alleging misconduct in connection with
CTI's purchase of certain medical devices from GEOMC.
Second Am. Compl., ECF No. 137. GEOMC now seeks to strike
aspects of CTI's Answer to its Second Amended Complaint
under Fed.R.Civ.P. 12(f), claiming that CTI improperly
changed its responses from those stated in its original
Answer and stated new affirmative defenses beyond the scope
of permissible amendment. Pl. Mot. to Strike, ECF No. 139.
For the reasons outlined below, GEOMC's Motion to Strike
is GRANTED IN PART and DENIED IN PART.
filed its initial complaint in August 2014 and then
subsequently amended it, with the consent of all parties, in
October 2014. Compl., ECF No. 1; Am. Compl., ECF No. 29.
GEOMC's Amended Complaint describes five distinct causes
of action against CTI: Replevin; Wrongful Detention in
violation of Conn. Gen. Stat. § 52-515; Conversion; and
violation of the Connecticut Unfair Trade Practices Act
(“CUTPA”). Id. at ¶¶ 53-86.
Each of these claims relates to a series of a specific kind
of medical device allegedly purchased from GEOMC by CTI and
for which CTI allegedly failed to make full payment.
Id. CTI filed its Answer to GEOMC's Amended
Complaint on December 31, 2014, including with its responses
nine affirmative defenses and no counterclaims. Answer to Am.
Compl., ECF No. 36.
September 2015, over eight months after CTI filed its Answer
to GEOMC's Amended Complaint, CTI sought leave to amend
its Answer. Mot. for Leave to Am. Compl., ECF No. 109.
CTI's proposed amendments included several additional
affirmative defenses not alleged in its previous Answer, as
well a new “third party complaint” asserting
several counterclaims against GEOMC. Id. GEOMC
opposed CTI's motion, arguing that a defendant should not
be permitted to change its answers or broadly assert new
counterclaims after its initial answers have already been
filed. Pl. Mem. in Opp., ECF No. 121. GEOMC simultaneously
filed a cross-motion of its own seeking leave to amend its
Amended Complaint by adding a sixth claim for breach of
contract. Cross Motion to Am., ECF 120.
extensive briefing regarding whether GEOMC should be
permitted to amend its answer, the Court denied CTI's
motion for leave to amend, granted leave for GEOMC to file a
Second Amended Complaint, and permitted CTI to file an
amended Answer in response, subject to GEOMC's ability to
file a motion to strike any components of CTI's answer
that were impermissible. Order, ECF No. 136. Pl. Mem., ECF
No. 121. In its Order, the Court rejected the “narrow
approach” espoused by GEOMC, which would have
prohibited CTI from filing any new defenses and/or
counterclaims in its amended Answer in the absence of leave
from the Court. Id.
filed its Second Amended Complaint on June 15, 2016, adding
three sentences to assert a sixth cause of action for breach
of contract. Second Am. Compl., ¶¶ 87-79. CTI filed
its amended Answer on June 30, 2016. Answer to Second Am.
Compl., ECF No. 138. In its amended Answer, CTI significantly
increased its number of affirmative defenses, alleging the
following additional defenses: GEOMC is liable for any
medical devices that were defective (“Fourth
Affirmative Defense”); GEOMC's damages were caused
by their own negligence and misconduct as well as the
negligence of third parties (“Sixth Affirmative
Defense”); GEOMC has failed to join a necessary party
(“Seventh Affirmative Defense”); any damages owed
by CTI are offset by the amounts owed to CTI by GEOMC
(“Eighth Affirmative Defense”); GEOMC failed to
mitigate its damages (“Ninth Affirmative
Defense”); and GEOMC never gave CTI reasonable notice
as required by the agreement between the parties
(“Tenth Affirmative Defense”). Id. at
amended Answer also brings six new counterclaims against
GEOMC. Id. at ¶¶ 131-159. CTI specifically
alleges the following counterclaims: GEOMC breached an
exclusive license agreement in which GEOMC agreed to
manufacture certain medical devices exclusively for CTI by
selling devices to a separate entity named Radiant Health
Management Corp. (“Radiant”) (“First
Counterclaim”); GEOMC tortiously interfered with a
separate manufacturing license agreement between CTI and
another third party entity, Delta Research & Development
S.R.L. (“Delta”) (“Second
Counterclaim”); GEOMC knew that it was entering into
ultra vires agreements with one of CTI's officers, Johnie
Johnson; (“Third Counterclaim”); CTI overpaid
GEOMC by the amount of $32, 000 (“Fourth
Counterclaim”); GEOMC engaged in unfair competition and
unlawful business acts in violation of the Lanham Act and
“state law”; (“Fifth Counterclaim”);
and both Radiant and GEOMC's Chief Executive Officer
Young H. Lim tortiously interfered with CTI's contractual
agreement with GEOMC regarding the manufacture of the medical
devices at issue (“Sixth Counterclaim”).
Id. CTI's amended Answer also reflects changes
in CTI's responses whereby various admissions were
rewritten into denials. Id. at ¶¶ 19, 20,
27, 28, 40, 41, 42.
now moves to strike several of CTI's new answers,
affirmative defenses and counterclaims under Rule 12(f). Mot.
to Strike, ECF No. 139.
STANDARD OF REVIEW
12(f) of the Federal Rules of Civil Procedure provides that a
court “may strike from a pleading any insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). Resolution of a
Rule 12(f) motion is within the discretion of the district
court, and such motions are generally disfavored and should
be infrequently granted. Tucker v. Am. Int'l Grp.,
Inc., 936 F.Supp.2d 1, 15-16 (D. Conn. 2013). The Second
Circuit has long held that courts “should not tamper
with the pleadings unless there is a strong reason for so
doing, ” and that a motion to strike under Rule 12(f)
should be denied “unless it can be shown that no
evidence in support of the allegation would be
admissible.” Lipsky v. Commonwealth United
Corp., 551 F.2d 887, 893 (2d Cir. 1976). Thus, the party
moving to strike “bears a heavy burden” and
ordinarily must show that “(1) no evidence in support
of the allegations would be admissible; (2) the allegations
have no bearing on the issues in the case; and (3) permitting
the allegations to stand would result in prejudice to the
movant.” Tucker, 936 F.Supp. at 16.
respect to affirmative defenses and counterclaims, in order
for a motion to strike to be granted, there must be some
showing of prejudice to the moving party. Walters v.
Performant Recovery, Inc., 124 F.Supp.3d 75, 80 (D.
Conn. 2015) (“Plaintiff does not identify, nor can the
Court ascertain, any 'prejudicial harm to plaintiff
arising from the inclusion of this defense, and thus,
'the defense need not be stricken.'”)
(citing Cnty. Vanlines Inc. v. Experian Info. Solutions,
Inc., 205 F.RD. 148, 153 (S.D.N.Y. 2002)); see also
Balk v. New York Inst. of Tech., No. CV 11-509 (JFB)
(AKT), 2013 WL 6990767, at *10 (E.D.N.Y. Sept. 30, 2013)
(permitting the assertion of new affirmative defenses,
explaining that “the Court is not convinced that
Plaintiff would be prejudiced by the assertion of these two
affirmative defenses”); Coach, Inc. v. Kmart
Corps., 756 F.Supp.2d 421, 425-26 (S.D.N.Y. 2010)
(“If a court determines that a defense is legally
insufficient, the court must next determine whether inclusion
of the defense would prejudice the plaintiff).
“Striking a pleading has been described as a
'drastic remedy' and 'to prevail on a motion to
strike, the movant must clearly show that the challenged
matter has no bearing on the subject matter of the litigation
and that its inclusion will prejudice the movant.'”
Lamoureux v. AnazaoHealth Corp., 250 F.R.D. 100, 102
(D. Conn. 2008) (citing 2 Moore's Federal
Practice, §§ 12.37, 12.37 (3d ed.
argues that the changes reflected in CTI's amended Answer
are impermissibly disproportionate to the changes reflected
in GEOMC's Second Amended Complaint. Pl. Mem. in Supp.,
ECF No. 139-1. Specifically, GEOMC argues that CTI should not
be permitted to (1) change prior admissions to denials; (2)
allege six additional affirmative defenses; and (3) bring
five of its six new counterclaims against GEOMC. Id.
With respect to CTI's Sixth and ...