costs. In its answer, D set forth fourteen affirmative defenses, six of which McMahon now challenges as legally insufficient under Rule 12(f).
I. Rule 12(f) Standard
Rule 12(f) allows the court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Courts generally disfavor Rule 12(f) motions and do not routinely grant them. See William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds and remanded, 478 U.S. 1015, 92 L. Ed. 2d 731, 106 S. Ct. 3324 (1986). In evaluating such motions, courts construe the pleadings liberally to give the defendant a full opportunity to support its claims at trial, after full discovery has been made. See id.
There are several requirements for granting a motion to strike an affirmative defense under Rule 12(f). First, a court will not grant a Rule 12(f) motion "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." Id. Second, the affirmative defense sought to be stricken must not present disputed and substantial questions of law, resolution of which could support the defendant's contentions. See id. In this regard, courts are particularly reluctant to consider disputed and substantial questions of law when there has not been significant discovery and a hearing on the merits. See id. Finally, courts generally require that the plaintiff show that it would be prejudiced by inclusion of the affirmative defense. See S.E.C. v. Lorin, 869 F. Supp. 1117, 1120 (S.D.N.Y. 1994). With these general principles in mind, the court will consider each of the challenged affirmative defenses seriatim.
II. Affirmative Defenses
A. Failure to State a Claim (First Affirmative Defense)
D/L's first affirmative defense provides that "the third-party complaint, in whole or in part, fails to state a claim upon which relief may be granted." See D/L's Answer at P 10. Including an affirmative defense of failure-to-state-a-claim in an answer is a routine practice which is rarely, if ever, stricken by the court as legally insufficient. See S.E.C. v. Toomey, 866 F. Supp. 719, 723 (S.D.N.Y. 1992). In fact, some courts have "found that the failure-to-state-a-claim defense is 'invulnerable as against the [12(f)] motion.'" Id.
In addition to these general principles, there is even a more fundamental reason not to strike this defense in the present case. According to D/L, there is at least one factual scenario in which D could prevail on this defense. D argues that, even assuming that McMahon's allegation that contamination of the site is a result of the application of pesticides during the period of D/L's occupation of the site is true, this fact alone would not establish D/L's liability under CERCLA because CERCLA contains an exemption for the application of a registered pesticide. See D/L's Memorandum of Law at 4 (citing 42 U. S. C. § 9607(i)) (other citation omitted). For all these reasons, the court concludes that D/L's first affirmative defense should not be stricken. Accordingly, the court denies McMahon's motion to strike this defense pursuant to Rule 12(f).
B. Laches (Second Affirmative Defense) & Failure to Mitigate Damages (Ninth Affirmative Defense)
D argues that consideration of the factors set forth in § 9607(b) is not necessary to the court's determination of whether its equitable affirmative defenses are sufficient because McMahon's third-party complaint is based solely upon § 9613(f). Although paragraph eight of the third-party complaint expressly provides that the "complaint is predicated on 42 USC Section 9613(f) ...," the WHEREFORE clause requests that the court "adjudge (1) that D is a responsible party under 42 USC Section 9607(a) and (2) that D must, pursuant to 42 USC Section 9613(f), contribute its equitable share...." See Verified Third-Party Complaint at P 8 and WHEREFORE clause. Thus, reading the complaint as a whole, it is clear that McMahon relies upon both §§ 9607(a) and 9613(f) to support her claims against D/L.
This conclusion is consistent with the fact that resolution of any third-party CERCLA contribution action involves two distinct phases. In the first phase, McMahon must prove that D is a responsible party within the meaning of § 9607(a) and thus liable for response costs. See 42 U. S. C. § 9607(a); Town of Munster v. Sherwin-Williams Co., 27 F.3d 1268, 1270 (7th Cir. 1994); Thaler v. PRB Metal Prods., Inc., 815 F. Supp. 99, 102 (E.D.N.Y. 1993), aff'd without opinion, 28 F.3d 102 (2d Cir. 1994). If McMahon is successful in the first phase, then she may seek contribution from D for its share of the response costs pursuant to § 9613(f). See 42 U. S. C. § 9613(f); Munster, 27 F.3d at 1270; Thaler, 815 F. Supp. at 102.
The statutory language of CERCLA allows for different affirmative defenses depending on whether they are raised during the liability phase or the contribution phase of the litigation. See Munster, 27 F.3d at 1270; Thaler, 815 F. Supp. at 102. Therefore, McMahon's motion to strike D/L's equitable affirmative defenses of laches and failure to mitigate damages must be analyzed in the context of each of these phases.
The only defenses to liability under CERCLA § 9607(a) are those enumerated in § 9607(b). See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992); see also Munster, 27 F.3d at 1271. Section 9607(b) of Title 42 of the United States Code provides, in pertinent part, that
There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by: (1) an act of God; (2) an act of war; (3) an act or omission of a third party other than an employee or agent of the defendant ...; or (4) any combination of the foregoing paragraphs.