MOTION TO STRIKE AFFIRMATIVE DEFENSES IN DEFENDANTS' ANSWER

William Silverstein, the plaintiff herein, hereby asks that this Court strike several of the affirmative defenses contained in the Answer filed by the defendants to his Second Amended Complaint (hereinafter "Answer," as it is the only answer they have filed) for noncompliance with the notice requirements of Rules 9 and 12 of the Massachusetts Rules of Civil Procedure. ⁽¹⁾

The last sentence of Rule 12(b) provides that:

"A motion, answer, or reply presenting the defense numbered (6) shall include a short, concise statement of the grounds on which such defense is based."

The defense numbered (6) referred to therein is the Rule 12(b)(6) defense of failure to state a claim upon which relief may be granted.

The reason for this requirement of specificity is clear: in the absence of a statement of the grounds upon which this defense is based, it becomes a "catchall" place-holder for any defense that may be proffered later, allowing for trial by ambush, not to mention trial by afterthought.

Despite this direction in the text of Rule 12(b), the defendants' First Affirmative Defense, on page 9 of their Answer, says, in full:

"First Affirmative Defense

Plaintiff's allegations against the defendants fail to state a claim upon which relief can be granted."

Accordingly, the plaintiff asks that the defendants' First Affirmative Defense be struck as inadequately pled, for its failure to give the plaintiff the required notice of its basis.

Rule 9(c) provides that:

"(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity."

[emphasis added]

As with the preceding defense, this defense one that a defendant cannot assert generally but must plead with greater specificity. (In fact, the plaintiff himself went beyond the requirements of this rule and did plead his compliance specifically.) Once again, the defendants ignore the clearly-stated requirements of the last sentence of Rule 9(c). The defendants' Eleventh Affirmative Defense, on page 10 of their Answer, says, in full:

Plaintiff failed to exhaust all administrative remedies and to satisfy all administrative prerequisites to bringing some or all of his claims."

Not only does this not state what the plaintiff failed to do procedurally, it doesn't even make clear what claims it is addressed to!

Accordingly, the plaintiff asks that the defendants' Eleventh Affirmative Defense be struck as inadequately pled, for its failure to give the plaintiff the required notice of its basis.

The defendants' other affirmative defenses are pled more generally than the plaintiff believes that a plaintiff would be allowed to plead a claim. It is acknowledged that there is a paucity of case law directly on point with respect to this issue, but as the rules of pleading are designed to provide notice to each party of the basic contentions of the other, a defendant should be under no less of a duty than a plaintiff in pleading its defenses.

With respect to estoppel, laches, waiver and unclean hands, ⁽²⁾ those defenses can be based on allegations of fraud, mistake, duress, or undue influence, which must be pled with particularity under Rule 9(b). ⁽³⁾

At the very least the defendants should be required to make clear whether their Second Affirmative Defense signifies any allegations of fraud, mistake, duress, or undue influence, and, if so, to plead them in compliance with Rule 9(b).

More generally, the plaintiff submits that the defenses of release (Third Affirmative Defense, at page 9), accord and satisfaction (Tenth Affirmative Defense, at page 10), "mootness and ripeness" ⁽⁴⁾ (Twelfth Affirmative Defense, at page 10) and time bar (a species of condition precedent) (Fourteenth Affirmative Defense, at page 11), should be pled in at least as clear a manner as a plaintiff is required to plead a claim--which they are not, being simple assertions simply of the names of those defenses (in the same manner as the defenses quoted above).

Would a plaintiff who presented a complaint asserting simply that the defendant owed him compensation for "failing to fulfill duties owed to him" (compare to the Seventh Affirmative Defense, at page 10), or for "failing to act fairly and equitably towards him" (compare to the Eighth Affirmative Defense, at page 10) be allowed to avoid pleading "ultimate facts" to indicate what his claim is based upon?

While the Rules do not require the pleading of underlying facts except as required by Rule 9, they do require the pleading of at least ultimate facts to allege the elements of a claim. Nothing excuses a defendant from the same duty of alleging the elements of a defense, and the plaintiff therefore asks that this Court require the defendants to do so with respect to each affirmative defense they have pled, and to plead with specificity where required by Rule 9.