The opinion of the court was delivered by: SAND
OPINION ON PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S COUNTERCLAIM
LEONARD B. SAND, U.S.D.J.
Plaintiff Lawrence J. Deutsch moves under Fed.R.Civ.P. 12 to dismiss a counterclaim asserted by defendant Health Insurance Plan of Greater New York ("HIP") in defendant's July 25, 1983 further amended answer to plaintiff's amended complaint of June 24, 1983 and, under Fed.R.Civ.P. 11, for costs and attorneys' fees in preparing this motion. For reasons set forth below, plaintiff's motion to strike HIP's counterclaim is granted, while his motion for attorney's fees is denied.
A fuller statement of the facts of this case is to be found in this Court's opinion on defendant's motion for summary judgment, issued this same day. Insofar as they are relevant to this opinion, the undisputed facts of this case are as follows.
Plaintiff's original complaint in this case alleged that defendant had breached an exclusive contract under which plaintiff was to receive referrals for audiological examinations from all HIP affiliated medical groups. By leave of the Court, plaintiff amended his complaint on June 24, 1983 to allege in addition fraud in the inducement with respect to this contract.
On July 5, 1983, defendant filed an answer to the amended complaint containing the following affirmative defense.
The damages plaintiff seeks to recover in this action would have accrued to him, absent the alleged breach, only as a result of a pattern of conduct which would have violated the laws and public policy of the State of New York. Therefore, the plaintiff is not entitled to any recovery even assuming, arguendo, that the Contract was breached.
(Gordon Affidavit, Exhibit 3, P27). On the same day that this amended answer was filed, counsel for defendant apparently informed plaintiff's attorney orally that this affirmative defense was based upon S 6509-a of the New York Education Law, which prohibits fee splitting by licensed physicians.
On July 25, 1983, defendant filed an amended answer to plaintiff's amended complaint containing a counterclaim for damages based upon plaintiff's allegedly illegal fee-splitting arrangements with various medical groups. Apparently, Dr. Deutsch referred HIP patients to other audiologists for testing and would prepare written reports based upon their test results. Of the $32.00 fee HIP paid to him for each patient, Dr. Deutsch would keep $12.00 for himself and forward the remaining $20.00 to the entities that actually performed the tests. HIP's counterclaim seeks recovery of $12.00 the portion of the $32.00 fee it paid Dr. Deutsch for each patient.
1. The timeliness of defendant's counterclaim.
Plaintiff contends that defendant's counterclaim was improperly asserted because, under Fed.R.Civ.P. 13(f), a counterclaim initially omitted from a pleading may only later be interposed with leave of the Court. Mercantile Trust Co. N.A. v. Inland Marine Products Corp., 542 F.2d 1010, 1012 n.5 (8th Cir. 1976); Stoner v. Terranella, 372 F.2d 89, 91 (6th Cir. 1967); Exchange National Bank of Chicago v. ...