ACE AMERICAN INS. CO. v. KEYSTONE CONSTRUCTION & MAINTENANCE SERVICES, INC.
United States District Court, D. Connecticut.
September 27, 2012.
B. Sprague's Motion to Strike Answer to Third-Party Complaint
Sprague has filed a third-party complaint against Kleen for contractual indemnification and breach of contract (for failure to indemnify). Sprague has now moved to strike certain answers and affirmative defenses to that third-party complaint.
Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike from "any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f). "Motions to strike affirmative defenses are generally disfavored." New England Health Care Employees Welfare Fund v. iCare Mgmt., LLC., 792 F.Supp.2d 269, 288 (D. Conn. 2011). In order to prevail on a motion to strike an affirmative defense, Sprague must demonstrate that (1) there is no question of fact that might allow the defense to succeed; (2) there is no substantial question of law that might allow the defense to succeed; and (3) [it] would be prejudiced by the inclusion of the defense." Id. (internal quotations omitted).
In Count One of its third-party complaint, Sprague made a claim for contractual indemnification. In response to many of the allegations in Count One, Kleen admits that Sprague has quoted the contract language, but states that "[i]n further answer it denies that Section [8.1 and 8.3 of the Agreement] appl[y] to the claims asserted against Sprague by Kleen's insurers because Sprague knowingly sold its gas to Kleen for gas blows which was an ultra-hazardous and/or inherently dangerous use of its product and its conduct was reckless, wanton and/or willful as more specifically set forth in its Affirmative Defenses." See ¶¶ 6, 7, 9, 10. Other paragraphs in the answer to Count One also state that Kleen's conduct was reckless because gas blows are inherently dangerous. See ¶¶ 13, 14.
Sprague argues that these allegations are "improper, untrue, self-serving, presumptuous and possibly prejudicial, [and] not proper for an Answer." Sprague's Mot. to Strike at 4. Sprague also argues that to the extent these allegations survive, they are redundant and should be stricken.
At the end of its answer to Count One, Kleen states that "WHEREFORE the Third-Party Defendant Kleen Energy Systems, LLC denies that the Third-Party Plaintiff is entitled to the requested relief and it moves for judgment in its favor of no cause for action together with its costs and attorneys' fees so wrongfully sustained." Sprague argues that it is improper for Kleen to attempt to move for judgment in its answer, and that those portions of the "Wherefore" clause should be stricken.
In Count Two of its third-party complaint, Sprague made a claim for breach of contract. In its answer, Kleen incorporated paragraphs 1-17 of its answer to Count One. Sprague argues that paragraphs 6, 7, 9, 10, 13, and 14 of Count Two should be stricken for the same reasons they should be stricken from Count One.