The opinion of the court was delivered by: MCCURN
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure ("Rule 12(f)"), Third-party Plaintiff Mary A. McMahon ("McMahon") moves to strike six of Third-party Defendant D Cooperative, Inc.'s ("D/L") fourteen affirmative defenses as legally insufficient. Briefly, McMahon challenges the following affirmative defenses: failure to state a claim (first affirmative defense); laches (second affirmative defense); inconsistency with the National Contingency Plan ("NCP") (fifth affirmative defense); failure to mitigate damages (ninth affirmative defense); pendency of a bankruptcy proceeding which may render this action moot (thirteenth affirmative defense); and collateral estoppel (fourteenth affirmative defense).
In the first-party action the State of New York ("the State") filed a complaint against the McMahons, among others,
seeking to recover response costs for the cleanup of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). See New York v. Almy Brothers, Inc., 866 F. Supp. 668 (N.D.N.Y. 1994) ("McMahon I"). This court held that the McMahons were responsible parties under CERCLA and, therefore, liable for present and future response costs which the State incurred. See id. at 681. In a separate decision, this court held that the McMahons, together with defendants Leonard Almy and Almy Brothers, Inc., were jointly and severally liable under CERCLA, 42 U. S. C. § 9607(a), for the State's response costs in the amount of $ 1,071,227. See New York v. Almy Brothers, Inc., 1996 U.S. Dist. LEXIS 341, 1996 WL 12031 (N.D.N.Y. 1996) ("McMahon II").
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.
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 ...