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concluding that Eleventh Amendment immunity did not apply where deaf inmate alleged, inter alia, that DOCS staff "denied [plaintiff's] request for replacement batteries [for his hearing aids], then subjected him to a surprise vicious attack, from behind, and confiscated his hearing aids"
Summary of this case from Russell v. New YorkOpinion
No. 05 Civ. 2897 (RWS).
September 29, 2006
MEMORANDUM OPINION
Pro se plaintiff Kenneth Smith ("Smith"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has moved pursuant to Rule 12(f), Fed.R.Civ.P., to strike the affirmative defenses presented by defendant Westchester Medical Center ("WMC"). For the reasons set forth below, the motion is denied.
The Parties
At all times relevant to his complaint (the "Complaint"), Smith was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). (See Compl. ¶ II.) According to the Complaint, Smith has been diagnosed as deaf. (Compl. ¶ IV.1.)
WMC is a medical facility located in Valhalla, New York. According to documents attached as exhibits to the Complaint, Smith was sent by DOCS to WMC for medical and/or dental consultation and treatment on at least three occasions: on June 14, 2001; some time in July 2004; and again on September 29, 2004. (See Compl. Ex. F.)
Prior Proceedings
This action was commenced on March 16, 2005, by the filing of the Complaint against named and unnamed employees of DOCS, as well as several medical providers, including WMC. The Complaint alleges violations of Smith's rights under the Americans with Disabilities Act, 42 U.S.C. § 12312 et seq. (the "ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (the "Rehabilitation Act"). The Complaint further alleges various constitutional violations, as well as claims of assault and medical malpractice.
WMC was served with a copy of the Complaint on or about September 8, 2005. WMC filed its answer on November 3, 2005, asserting six affirmative defenses, namely that (1) Smith has failed to state a cause of action, (2) his claims are barred by the applicable statutes of limitations, (3) WMC has acted in good faith and in compliance with all relevant laws and regulations, (4) WMC has not violated Smith's constitutional or statutory rights, (5) Smith has failed to present a nonfrivolous federal claim, and (6) WMC is entitled to qualified immunity.
Smith filed the instant motion to strike WMC's affirmative defenses on November 16, 2005. The motion was marked fully submitted on December 28, 2005.
Discussion
It is well-established in this Circuit that "[a] motion to strike an affirmative defense under Rule 12(f), Fed.R.Civ.P., for legal insufficiency is not favored." William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986);see also SEC v. Toomey, 866 F. Supp. 719, 721-22 (S.D.N.Y. 1992); Carter-Wallace, Inc. v. Riverton Labs., Inc., 47 F.R.D. 366, 367-68 (S.D.N.Y. 1969).
Three prerequisites must be satisfied before a motion to strike an affirmative defense will be granted. First, a motion to strike an affirmative defense "will not be granted `unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense.'"Salcer, 744 F.2d at 939 (quoting Durham Indus. v. North River Ins. Co., 482 F. Supp. 910, 913 (S.D.N.Y. 1979)); see also Morse/Diesel Inc. v. Fidelity Deposit Co., 763 F. Supp. 28, 34 (S.D.N.Y. 1991). To this end, defendant's pleadings must be construed liberally. See Bennett v. Spoor Behrins Campbell Young, Inc., 124 F.R.D. 562, 564 (S.D.N.Y. 1989); Oliner v. McBride's Indus., Inc., 106 F.R.D. 14, 17 (S.D.N.Y. 1985).
Second, "even when the facts are not disputed, . . . a motion to strike for insufficiency was never intended to furnish an opportunity for the determination of disputed and substantial questions of law[,] . . . particularly [when] there has been no significant discovery." Salcer, 744 F.2d at 939 (citations and internal quotation marks omitted).
Third, plaintiff must show that it is prejudiced by the inclusion of the defense. See Oliner, 106 F.R.D. at 17; see also 5A Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 1381, at 672 (2d ed. 1990). Increased time and expense of trial may constitute sufficient prejudice to warrant granting plaintiff's Rule 12(f) motion. When "the defense is insufficient as a matter of law, the defense should be stricken to eliminate the delay and unnecessary expense from litigating the invalid claim." FDIC v. Eckert Seamans Cherin Mellott, 754 F. Supp. 22, 23 (E.D.N.Y. 1990); see also Metric Hosiery Co. v. Spartans Indus., Inc., 50 F.R.D. 50, 51-52 (S.D.N.Y. 1970).
Because Smith has failed to demonstrate that any of WMC's affirmative defenses are insufficient as a matter of law, because discovery has not yet proceeded and there are substantial issues of fact remaining, and because there is no showing that Smith is in any way prejudiced by the inclusion of WMC's affirmative defenses, his motion to strike must be denied. See Sunshine Cellular v. Vanguard Cellular Sys., 810 F. Supp. 486, 499-500 (S.D.N.Y. 1992) ("Motions to strike are not favored and will be denied unless the allegations have no possible relation to the controversy. If there is any doubt whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied. . . ." (citation omitted)).
It is so ordered.