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SIMON v. MANUFACTURERS HANOVER TRUST CO.

March 24, 1994

BEN SIMON, Plaintiff
v.
MANUFACTURERS HANOVER TRUST CO. and CHEMICAL BANKING CORPORATION, Defendants.



The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

 HAIGHT, District Judge:

 Plaintiff brought this action alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., 29 U.S.C. § 215 et seq. and New York Executive Law § 296 (McKinney's 1993). The case is currently before the Court on plaintiff's motion under Fed. R. Civ. P. 12(f) to strike certain of the affirmative defenses set forth in defendants' answer. For the following reasons, the Second, Seventh, Eighth and Ninth Affirmative Defenses are striken; but I deny plaintiff's request to strike the First Affirmative Defense.

 BACKGROUND

 According to the complaint, defendant Manufacturers Hanover Trust Co. ("Manufacturers Hanover") hired plaintiff as a computer systems specialist in 1983. Plaintiff allegedly continued in a mutually beneficial employment relationship with the bank for the next nine years, receiving several promotions and salary increases. On October 26, 1992, soon after Manufacturers Hanover merged with defendant Chemical Banking Corporation ("Chemical"), plaintiff was terminated from his employment with the bank, at the age of 55. Just two days after his discharge, on October 28, 1992, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging age discrimination resulting in his termination. On April 23, 1993, plaintiff filed the present complaint seeking reinstatement to his position as well as liquidated, compensatory and punitive damages.

  Defendants served plaintiff with an answer to the complaint on June 17, 1993. *fn1" The answer interposes nine affirmative defenses, five of which plaintiff challenges as insufficient on the present motion.

 DISCUSSION

 Rule 12(f) permits the Court to "order striken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A motion to strike should not be allowed if the defense presents questions of fact, and "even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." William Z. Salcer, Etc. v. Envicon Equities, 744 F.2d 935, 939 (2d Cir. 1984) (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1381, at 800-01), vacated on other grounds 478 U.S. 1015 (1986). Although motions to strike are generally disfavored, they will be granted where "it appears to a certainty that plaintiff[] would succeed despite any state of the facts which could be proved in support of the defense." Id. (quoting Durham Industries, Inc. v. North River Insurance co., 482 F. Supp. 910, 913 (S.D.N.Y. 1979) (quoting Lehmann Trading Corp. v. J. & H. Stolow, Inc., 184 F. Supp. 21, 22-23 (S.D.N.Y. 1960))). Indeed, motions to strike "serve a useful purpose by eliminating insufficient defenses and saving the time and expense which would otherwise be spent in litigating issues that would not affect the outcome of the case." United States v. Union Gas Co., 743 F. Supp. 1144, 1150 (E.D.Pa. 1990). Therefore, "where 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).

 Failure to State a Claim

 Plaintiff argues that the First Affirmative Defense, "The complaint fails to state a claim upon which relief can be granted," is patently insufficient because the complaint clearly states a prima facie claim of age discrimination under both the ADEA and N.Y. Exec. Law § 296, which is governed by the same standards as his ADEA claim. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.), cert. denied, 121 L. Ed. 2d 46, 113 S. Ct. 82 (1992). The parties do not quarrel over the required elements for a claim of age discrimination. Defendants assert that because the law requires plaintiff to show that age was the "but for" factor in the decision to terminate, and because "contrary to the allegations in the Complaint" plaintiff will not be able to make that showing, a question remains whether plaintiff can state a claim warranting relief.

 As plaintiff vigorously contends, this argument would not support a motion to dismiss for failure to state a claim under Rule 12(b)(6) because it points to a factual dispute not a legal insufficiency. Nevertheless, defendants' First Affirmative Defense is just that--an affirmative defense--not a motion to dismiss. Thus, the analysis required here is not the same as the analysis the Court would apply on a motion to dismiss for failure to state a claim. See Securities and Exchange Commission v. Toomey, No. 92 Civ. 1492, 1992 U.S. Dist. LEXIS 11826 *9 (S.D.N.Y. 1992) (declining to strike identical affirmative defense, court reasoned that "the question of whether plaintiff has stated a claim upon which relief can be granted appears only as a defensive pleading and does not demand immediate resolution. The burdens on the pleader are therefore not the same as they would be had he made a Rule 12(b)(6) motion.") A failure-to-state-a-claim defense is akin to a "general denial" and is widely accepted as a permissible affirmative defense. See id. As another court has held in the same context, although the defense may be "redundant, there is not prejudicial harm to plaintiff and the defense need not be stricken." Oppel v. Empire Mut. Ins. Co., 92 F.R.D. 494, 498 (S.D.N.Y. 1981) (Weinfeld, J.). Therefore, because the First Affirmative Defense is essentially a general denial and does not ask the Court to determine whether the complaint is sufficient, plaintiff will not be prejudiced by its retention and I decline to strike it.

 Statute of Limitations

 The Second Affirmative Defense alleges "The Complaint is barred by the applicable statute of limitations." Plaintiff contends that this defense is insufficient because the complaint was unquestionably timely filed in compliance with the statute of limitations provision of the ADEA, § 626(d), and under New York law. Defendant does not challenge plaintiffs' contention that the complaint's claim for relief arising out of his allegedly discriminatory termination was timely filed. Defendants instead assert that it is "too early" to determine whether plaintiff will add further claims alleging that the bank discriminated against him at earlier times, which claims could potentially be time-barred. Defendants' Memorandum in Opposition at 6-7.

 Defendants argument does not support the sufficiency of this statute of limitations defense against the present complaint. To the contrary, defendants' argument implicitly recognizes that the complaint does not presently assert claims which are barred by the statute of limitations. Defendants instead assert that the defense expresses concern about the untimeliness of future claims, not present in the complaint. The defense is therefore clearly insufficient to defeat the present complaint and may not be asserted. If plaintiff seeks to amend the ...


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