United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PENDING MOTIONS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
following motions are currently pending before the Court:
Plaintiffs' Motion to Strike Affirmative Defenses [ECF
No. 51]; Plaintiffs' Motion to Compel Discovery [ECF No.
66]; Defendants' Motion to Quash Records-Only Subpoenas
[ECF No. 70]; and Plaintiffs' Motion to Strike Late
Responses [ECF No. 74]. The Court hereby rules on these
motions as set forth below.
Motion to Strike Affirmative Defenses 1, 2, 3, 11, 14, 15 and
12(f) of the Federal Rules of Civil Procedure allows a party
to move to strike from a pleading any “redundant,
immaterial, impertinent, or scandalous matter.”
Lexington Luminance LLC v. TCL Multimedia Tech. Holdings,
Ltd., No. 16-cv-11458-DJC, 2017 WL 3795769, at *1 (D.
Mass. Aug. 30, 2017) (quoting Dennison v. LaPointe,
No. 06-40100-FDS, 2006 WL 3827416, at *1 (D. Mass. Dec. 21,
2006)). Such motions are “generally disfavored”
due to their “somewhat dilatory and often harassing
character, ” are often considered “purely
cosmetic or time wasters, ” and should only be granted
“when it is beyond cavil that the defendant could not
prevail on them.” U.S. S.E.C. v. Nothern, 400
F.Supp.2d 362, 364 (D. Mass. 2005) (citations and internal
quotation marks omitted); Morris v. Gilbert, 649
F.Supp. 1491, 1498 (E.D.N.Y. 1986) (citation omitted).
“Thus, even when technically appropriate and
well-founded, Rule 12(f) motions are not granted in the
absence of a showing of prejudice to the moving party.”
Nothern, 400 F.Supp.2d at 364 (quoting 5C Charles
Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1381, at 421-22 (3d ed. 2004)). A Rule 12(f)
motion also “will not be granted if the insufficiency
of the defense is not clearly apparent, or if it raises
factual issues that should be determined on a hearing on the
Affirmative Defense Nos. 1, 14, 15, and 23 do not set forth a
proper defense. Fed.R.Civ.P. 8(c)(1). Affirmative Defense No.
1 is immaterial to the claims asserted. Affirmative Defense
No. 23 is improper because it is based on a statute that
applies “only to cases brought in state courts and does
not permit such awards by federal district
courts.'” Metro. Prop. & Cas. Ins. Co. v.
Boston Reg'l Physical Therapy, Inc., 538 F.Supp.2d
338, 344 (D. Mass. 2008) (quoting Brandon Assocs., LLC v.
FailSafe Air Safety Sys. Corp., 384 F.Supp.2d 442, 445
(D. Mass. 2005)); see Monahan Corp. N.V. v. Whitty,
319 F.Supp.2d 227, 232 (D. Mass. 2004) (“[T]his court
finds and concludes that the Massachusetts legislature, in
granting a right to seek an award of attorneys' fees
under G.L. c. 231, § 6F, never intended that that relief
could be sought in an action brought in a federal district
court.”). Affirmative Defense Nos. 14 and 15 are
insufficient for the reasons stated in the Court's
Memorandum and Order on Motions to Dismiss dated August 16,
2017. [ECF No. 38]. Affirmative Defense No. 15 also
improperly characterizes a jurisdictional issue as an
affirmative defense. See Native Am. Arts, Inc. v. The
Waldron Corp., 253 F.Supp.2d 1041, 1045 (N.D. Ill. 2003)
(standing not affirmative defense because plaintiffs
“bear the burden of pleading and proving
standing”); see also In re Inofin Inc., No.
11-bk-11010- JNF, 2012 WL 5457415, at *22 (Bankr. D. Mass.
Nov. 8, 2012) (standing “is a threshold issue for a
federal court, ” which “a plaintiff must
colorably allege . . .”). Accordingly, the motion to
strike [ECF No. 51] is granted as to Affirmative Defense Nos.
1, 14, 15 and 23, but is otherwise denied.
Motion to Compel Discovery
motion to compel discovery [ECF No. 66] is granted as
follows: Defendants shall provide complete responses to the
Rule 33 interrogatories and Rule 34 document requests
propounded by Plaintiffs, and make document productions, on
or before April 20, 2018. No. further extensions of
this deadline are will be granted.
Motion to Quash Subpoenas
motion to quash records-only subpoenas directed to various
banks is granted. [ECF No. 70]. The discovery sought is not
sufficiently relevant to a party's claims or defenses or
proportional to the needs of the case at this time.
Fed.R.Civ.P. 26(b)(1). Accordingly, the motion to quash is
granted, but the request that the Court permanently forbid
discovery into these matters is denied.
Motion to Strike Late Responses
Court recognizes that this motion is not yet ripe for
adjudication. That being said, Fed.R.Civ.P. 36(a)(3), as a
matter of law, provides that late filed responses to requests
for admission generally result in the facts being deemed
admitted. Based on this rule, the Court is likely to allow
this motion. If Defendants seek a different outcome, their
motion response must be accompanied by revised and complete
responses to the requests for admission. Given the limited
prejudice, if any, at this time, if complete answers are
provided with the motion response, the Court will consider
allowing these answers to be deemed timely filed.
Court does not countenance the discovery tactics of either
party to this dispute. These rulings are meant to get the
discovery process back on track without unduly penalizing
either side for their conduct to date. The Court aims to
allow both parties to regroup and proceed with discovery in
an orderly and professional manner. Failure to fully comply
with the rules of discovery going forward may result in