Case Information
*1 17-3502-cv
GEOMC Co., Ltd. v. Calmare Therapeutics Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term
Argued: September Decided: March 12, Docket No. ‐ ‐ cv
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GEOMC CO., LTD.,
Plaintiff ‐ Counter ‐ Defendant ‐ Appellee,
CALMARE THERAPEUTICS INCORPORATED,
Defendant Counter Claimant ‐ Appellant.
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Before: NEWMAN, JACOBS, POOLER, Circuit Judges.
Appeal Sept. judgment District Connecticut (Victor A. Bolden, District Judge), requiring Calmare Therapeutics, Inc. (“Calmare”) pay $10,352,170.41 GEOMC Co., Ltd. *2 (“GEOMC”) after a bench trial a contract dispute concerning sales medical devices for managing pain. Most claims on appeal have been adjudicated in summary order filed this day, vacates judgment and remands. This opinion affirms District Court’s ruling striking two defenses and five counterclaims.
William Feldman, Haynes and Boone, LLP, New York, NY for Defendant ‐ Counter ‐ Claimant ‐ Appellant Calmare Therapeutics, Inc. Kristen B. Weil, (Richard M. Zuckerman, brief), Dentons US LLP, New York, NY for Plaintiff Counter ‐ Defendant ‐ Appellee GEOMC Co., Ltd.
JON O. NEWMAN, Circuit Judge:
This appeal complicated litigation concerning contract dispute merits opinion clarify standards for pleading defenses granting them, see Fed. R. Civ. P. 12(f), presenting challenging counterclaims filed, sought filed, responsive second Fed. R. Civ. P. 15(a). Other matters raised appeal been adjudicated summary order day. Defendant Appellant Calmare Therapeutics, Inc. (“Calmare”), Delaware corporation, appeals Sept. judgment District Connecticut (Victor A. Bolden, District Judge) favor Plaintiff ‐ *3 Appellee GEOMC Co., Ltd. (“GEOMC”), South Korean corporation, entered after bench trial. litigation concerns dispute arising sales of medical devices for managing pain.
Background Consideration of Court’s ruling striking two of Calmare’s affirmative defenses and five its counterclaims requires explication procedural context ruling. GEOMC filed an amended complaint October 2014, asserting five causes action. Calmare an answer December 2014, asserting nine defenses, but no counterclaims. In September 2015, almost year later, Calmare sought leave to amend its answer to amended complaint to add several additional defenses several counterclaims. GEOMC opposed Calmare’s request same time sought leave to amend its amended complaint adding sixth cause action.
Confronting unusual situation, Judge Bolden fashioned unusual response. On June he denied Calmare’s motion leave to answer GEOMC’s amended complaint, granted GEOMC’s motion leave file second permitted Calmare file amended second “subject [GEOMC’s] ability move, under Rule 12(f), strike material [Calmare’s] [GEOMC] believes exceeds scope permissible amendment.” Dist. Ct. Dkt. ECF Nos. 136. In effect, he authorized Plaintiff use under 12(f) *4 Federal Rules Civil Procedure to raise whatever issues it would have raised opposition Defendant’s motion to its under 15(a)(2).
On June 15, 2016, GEOMC filed second complaint, adding, a sixth cause action, claim for breach contract. On June 30, 2016, Calmare second complaint, adding six affirmative defenses and six counterclaims. On July 25, 2016, GEOMC moved strike all Calmare’s six affirmative defenses and five six new counterclaims. On Oct. 2016, Court granted part and denied part GEOMC’s motion strike. The Court denied motion respect four affirmative defenses, and, pertinent pending appeal, struck Calmare’s sixth seventh affirmative defenses five counterclaims. GEOMC Co. Calmare Therapeutics, Inc. No. 3:14 ‐ CV ‐ (VAB), WL *5 ‐ (D. Conn. Oct. 2016). Calmare seeks review ruling.
Discussion
I. Striking Calmare’s Affirmative Defenses
The standards determining proper defense granting had curious *5 evolution Circuit. Uncertainty has sometimes resulted fact district courts, which have made most rulings sufficiency affirmative defenses and motions strike them, have not always distinguished between affirmative defenses timely filed answer and those later filed, either with or without court permission amend an answer, especially those filed late stages litigation. Rule 12(a)(1)(A)(i) requires an answer be within days after service summons complaint. Rule 15(a)(1)(A) provides party entitled days after serving it, Rule 15(a)(2) permits an amended thereafter opposing party’s consent or leave court, should “freely give[n] . . . when justice so requires,” 15(a)(3) provides: “Unless court orders otherwise, any required response pleading must made within time remaining respond original within days after service pleading, whichever later.”
starting point for analysis Rule 12(f), provides that a court may strike “from pleading” any “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” [4] After adoption Federal Rules Civil Procedure first time we considered propriety striking an affirmative defense appears United States v. Oswego Falls Corp. , 113 F.2d 322 (2d Cir. 1940). We there ruled defense, apparently timely filed, was properly stricken because no facts were pleaded support defense. See id. 325. Shortly thereafter, we ruled, apparently first time, affirmative defense was properly stricken because it was legally insufficient. De Pasquale Williams Bauer Corp ., F.2d 580 (2d Cir. 1945); also Schram v. Schwartz F.2d (2d Cir. 1934) (same; pre Rules decision).
Not until many years later did we endeavor expand, even briefly, on pleading standard necessary survive motion strike. In William Z. Salcer, Panfeld, Edelman Envicon Equities Corp. F.2d (2d Cir. 1984) (“ Salcer ”), vacated other grounds U.S. (1986), we stated motion defense, apparently timely filed, will not *7 granted unless “it appears a certainty plaintiffs would succeed despite any state facts which could be proved in support of defense.” Id . at (internal quotation marks omitted). This formulation expansively phrased standard with wording then used by Supreme Court Conley v. Gibson , U.S. (1957), for testing sufficiency a complaint: “[A] should dismissed failure state claim unless it appears beyond doubt plaintiff can prove no set facts support his claim which would entitle him relief.” Id. at 46. That wording, Court ruled Bell Atlantic Corp. Twombly U.S. (2007), “is best forgotten,” id . was replaced “plausibility standard,” id . 560; Ashcroft Iqbal U.S. (2009) (same).
Fifteen years after Salcer Circuit purported extract opinion three part test striking timely defense: “In order prevail [an defense], plaintiff must show that: (1) there no question fact which might allow defense succeed; (2) there no question law might allow succeed; (3) plaintiff would prejudiced inclusion defense.” *8 S.E.C. v. McCaskey , 56 F. Supp. 2d 323, 326 (S.D.N.Y. 1999). This formulation divided Salcer ’s reference facts into two factors, one concerned with facts, [5] and the other concerned with law. The McCaskey formulation also added third factor, prejudice the plaintiff, factor not mentioned in Salcer .
After McCaskey , district courts in Circuit repeated the three McCaskey factors, initially in identical wording later only slight variations, in series of decisions, set out in the margin, [6] culminating in Coach, Inc. v. Kmart Corps ., 756 F. Supp. 2d 421, 425 ‐ 26 (S.D.N.Y. 2010).
*9 In the pending appeal, the District Court cited Coach the proposition that “‘ [i]f a court determines that a defense legally insufficient, the court must next determine whether inclusion the defense would prejudice the plaintiff.’” Special App’x 5 (quoting Coach , 756 F. Supp. 2d at 425 ‐ 26). The Court also stated the three relevant factors in terms somewhat different from those used in the McCaskey formulation in Coach . The said the party moving strike a
“ordinarily must show ‘(1) no evidence in support allegations would admissible; (2) allegations no bearing issues case; (3) permitting allegations stand would result prejudice movant.’”
Special App’x 4 (quoting Tucker v. American International Group, Inc. , 936 F. Supp. 2d 1, 16 (D. Conn. 2013)). three Tucker factors can traced back through a series decisions, set out margin, [7] did not concern motion strike *10 affirmative defenses, but concerned to strike either allegation of complaint material in pleading.
Before adjudicating propriety Court’s striking two Calmare’s affirmative defenses, we take occasion clarify factors relevant striking affirmative defense. To avoid having district courts continue repeat three ‐ factor formulation as worded in McCaskey , we consider each those factors in turn.
Whether first McCaskey factors should reworded light Twombly , i.e. , whether Twombly applies pleading affirmative defenses, issue has divided many district courts [8] and commentators considered it. Three comprehensive articles take three different approaches. One 887, 893 (2d Cir. 1976) (reference certain evidence pleading was immaterial because evidence would not admissible), Fuchs Sugars & Syrups, Inc. v. Amstar Corp. , 402 F. Supp. 636, 637 ‐ 38 (S.D.N.Y. 1975) (motion references immaterial denied lack prejudice), and 5A Charles A. Wright & Arthur R. Miller, Federal Practice Procedure § 1382, at 683 ‐ 85 (2d ed. 1990) (allegations would result prejudice movant).
[8] Compare, e.g., Perez v. Gordon & Wong Law Group, P.C. , No. 11 ‐ CV ‐ 03323 ‐ LHK, 2012 WL 1029425, at *6 ‐ 8 (N.D. Cal. Mar. 26, 2012) ( Twombly applicable defenses), HCRI TRS Acquirer, LLC v. Iwer , 708 F. Supp. 2d 687, 691 (N.D. Ohio 2010) (same), Tracy v. NVR, Inc. , No. ‐ CV ‐ 6541L, WL 3153150, *7 (W.D.N.Y. Sept. 30, 2009) (same), e.g., Leviton Manufacturing Co. v. Pass & Seymour, Inc. F. Supp. 3d 421, (E.D.N.Y. 2017) ( Twombly applicable defenses), Hon Hai Precision Industry Co. Wi LAN, Inc. No. Civ. 7900(SAS), WL *9 (S.D.N.Y. May 2013) (same), Lane Page F.R.D. (D.N.M. 2011) (same).
article favors applying Twombly affirmative defenses. See Joseph A. Seiner, Plausibility Beyond Complaint Wm. & Mary L. Rev. (2012). One opposes applying Twombly affirmative defenses . See Justin Rand, Tightening Twiqbal: Why Plausibility Must Be Confined Complaint Fed. Cts. L. Rev. (2016). One proposes “middle ground approach.” Note, Nathan Pysno, Should Twombly Iqbal Apply Affirmative Defenses?, Vand. L. Rev. (2011); also Moore’s Federal Practice § 12.37[4] (3d ed. 2018) (“If plaintiff files one more defenses, better view is plausibility standard Twombly does apply judging adequacy defendant’s pleaded defenses, although there some authority contrary.” (footnote omitted)); Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § (3d ed. 2018) (taking no position whether Twombly applies pleading defenses).
We conclude plausibility standard Twombly applies determining sufficiency all pleadings, including pleading defense, but recognition that, Supreme explained Iqbal applying plausibility standard any “context specific” *12 task. U.S. at 679. [9] The Court described the context of Iqbal as one “where we are impelled to give real content to the concept of qualified immunity for high ‐ level officials who must neither deterred nor detracted from the vigorous performance of their duties.” U.S. at 686.
The key aspect of the context relevant to the standard for pleading an affirmative defense an affirmative defense, rather than complaint, is issue. This relevant to the degree of rigor appropriate testing the pleading of an defense. The pleader has the entire time of the relevant statute limitations gather facts necessary to satisfy the plausibility standard. By contrast, pleader an has only ‐ day interval respond original see Fed. R. Civ. P. 12(a)(1)(A)(i), ‐ day interval amend, without court permission, requires responsive pleading, see Fed. R. Civ. P. 15(a)(1)(B), day interval file required response pleading makes claim, Fed. R. Civ. P. 15(a)(3). That aspect context matters. In addition, relevant context *13 will be shaped by nature the affirmative defense. For example, the facts needed plead a statute limitations defense will usually be readily available; facts needed plead ultra vires defense, for example, may be readily known defendant, a circumstance warranting a relaxed application plausibility standard. second factor identified McCaskey needs no revision. There is no
dispute affirmative defense is improper and should be stricken if it is legally insufficient basis precluding plaintiff prevailing on its claims.
Whether third McCaskey factors, prejudice, should be basis dismissing opposing addition otherwise valid defense will normally depend when defense is presented. A factually sufficient legally valid defense should always be allowed if timely even if it will prejudice plaintiff expanding scope litigation. A defendant such defense entitled full opportunity assert it it adjudicated before plaintiff may impose liability. Lucente International Business Machines Corp. F.3d (2d Cir. 2002). On other hand, prejudice may considered and, some cases, may determinative, where presented plaintiff’s first complaints original include defenses. *14 beyond normal time limits Rules, especially late stage in litigation, challenged by motion dismiss or opposed by opposition to 15(a) motion. Anderson National Producing Co. F. 2d (2d Cir. 1958) (motion made eighth day trial answer add affirmative defense properly denied).
With these considerations mind, we consider District Court’s ruling this case. Granting part motion by GEOMC, District Court struck Calmare’s sixth seventh defenses asserted its GEOMC’s second complaint. The sixth defense alleged that GEOMC’s damages were caused by own negligence; seventh defense alleged GEOMC failed join necessary party. Although District Court had permitted Calmare file answer, Court had cautioned Calmare’s would subject by GEOMC. The stated these defenses “introduce vague allegations regarding actions unnamed third parties, raising concerns both legal sufficiency prejudice GEOMC.” GEOMC WL *5.
Striking these two defenses was within Court’s discretion. sixth lacked any indication what conduct GEOMC *15 others might have been defense to breach of contract claim added second amended complaint. seventh lacked any indication party needed joined why. Calmare needed support these defenses some factual allegations make them plausible. Moreover, both defenses were presented at late stage litigation. Although defenses were presented soon after GEOMC its second amended they were aimed one new cause action complaint but sought challenge claims made nearly year earlier first amended complaint. Expanding litigation stage would have been prejudicial GEOMC.
II. Striking Calmare’s Counterclaims
We next turn Court’s ruling striking five Calmare’s new counterclaims amended responding GEOMC’s second amended complaint. Because variety district court rulings, both procedural and substantive, counterclaims, we consider both content new counterclaim responding procedures presenting challenging such counterclaim.
*16 As content, new counterclaim, like all pleadings, must conform requirements Twombly Iqbal . See 2 Moore’s Federal Practice, § 12.34[1][a] (3d ed. 2018); 6 Wright & Miller § 1407 (3d ed. 2018). closer question whether new counterclaim may respond broadly as one included in an answer an original complaint whether it must respond only new allegations an amended complaint. This an issue that remains unresolved, like other aspects asserting amended counterclaims. Christians California, Inc. v. Clive Christian Furniture Ltd., No. 13 CIV. 275 (LTS)(JCF), 2014 WL 982889, at *2 (S.D.N.Y. Mar. 11, 2014) (“courts in Circuit have adopted different approaches”); Southern New England Telephone Co. Global NAPS, Inc., No. CIVA 3:04 ‐ CV ‐ JCH, WL *1 (D. Conn. Feb. 14, 2007) (“a matter that remains unsettled Second Circuit”); Pereira Cogan No. CIV. (RWS), WL *2 (S.D.N.Y. Aug. 2002); Moore’s Federal Practice §§ 13.30[4] 15.17[6] (3d ed. 2018) (“case law . . . all over map”).
*17 We think resolution of issue depends how far into the litigation the new counterclaim asserted. If an amended with a new counterclaim is presented an early stage of the litigation, the new counterclaim may normally be broad as those filed in response an original complaint. At late stage of the litigation, however, new counterclaim that raises issues beyond the scope of the new claims made in the most recent amended will usually cause escalating prejudice the counterdefendant undue expansion litigation that court charged with managing; those reasons new counterclaim should normally not be permitted if it exceeds scope plaintiff’s new claims. “As general rule, risk substantial prejudice increases passage time.” 6 Wright & Miller, § 1488. Although “leave ‘shall be freely given,’” Foman v. Davis U.S. (1962) (quoting Rule 15(a)), Foman qualifies that advice adding “[i]n absence . . . undue prejudice,” id .; changes theory scope case,” id. but such counterclaims “must be those that respond new allegations in amended complaint,” id . Finally, so called “ Bern approach,” id. suggests courts considering whether new counterclaims may filed should “simply apply normal 15(a) standards, all their flexibility,” id .; s ee Bern Unlimited, Inc. Burton Corp., F. Supp. 3d (D. Mass. 2014) . Cf . Telecom International America, Ltd. AT&T Corp., F.3d (2d Cir.
2001) (stating broadly validly asserted counterclaim, presented within normal time limits applicable amended answer, should not rejected because prejudice). However, counterclaim issue case, although filed was counterclaim; it had been *18 McCarthy Dun & Bradstreet Corp. , 482 F.3d 200 (2d Cir. 2007) (“A district court has discretion to deny leave [to amend] for good reason, including . . . undue prejudice to opposing party.”). And, Foman points out, amended pleadings, which include new counterclaims, can also rejected because of “undue delay, bad faith or dilatory motive.” 371 U.S. 182.
As procedure presenting a new counterclaim, most attempts amend an answer include a new counterclaim require permission court or consent parties. See Fed. R. Civ. P. 15(a)(2). The only exceptions occur when a counterclaimant seeks amend its answer within 21 days after serving its original answer, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service upon it (1) required responsive pleading, e.g. an answer a counterclaim, (2) a under Rule 12(b), (e), (f), Fed. R. Civ. P. 15(a)(1)(B). And attempts amend include counterclaim after amended requires response has been must made within days after service complaint. See Fed. R. Civ. P. 15(a)(3). defendant’s plaintiff’s original complaint. Telecom International America, Ltd. AT&T Corp. F.R.D. (S.D.N.Y. 1999). apparent discrepancy between ‐ day interval Rule 15(a)(1)(B) day interval Rule 15(a)(3) will inevitably arise. Rule 15(a)(3) sets day
limit only “required response pleading.” 15(a)(1)(B) sets ‐ day interval party may “as course,” i.e without proper procedure to challenge a new counterclaim response to amended complaint depends on the procedure used by the counterclaimant. If the counterclaimant files a Rule motion its answer include a new counterclaim, the counterdefendant can oppose that motion. But if a counterclaimant files amended that includes a new counterclaim without seeking court permission under Rule 15(a)(2), thereby denying the counterdefendant opportunity oppose a counterclaimant’s motion, proper motion for the counterdefendant use depends on what appears on face pleadings or record.
In analogous situation where a claim or counterclaim is alleged be barred a statute limitations, Eleventh Circuit has helpfully explained “[w]hile statute limitations may raised on a dismiss failure state claim which relief can granted under Fed. R. Civ. P. 12(b)(6), Mann Adams Realty Co. F.2d (5th Cir. 1977), when shows its face limitations period has run, Mooney Tallant F. Supp. court’s opponent’s permission. Thus, day interval shortens day interval only where defendant, responding required plaintiff’s elects include counterclaim, because new counterclaim “to responsive pleading required,” Fed. R. Civ. P. 15(a)(1)(B), i.e. plaintiff/counterdefendant’s answer.
680 (N.D. Ga. 1975), the defect may be raised by motion summary judgment where the alleged failure comply the statute limitations does not appear on face complaint.” Avco Corp. v. Precision Air Parts, Inc. , 676 F.2d 494, 495 (11th Cir. 1982); Ellul v. Congregation Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014) (Rule 12(b)(6) motion proper where facts appear on face pleading); Chicago Building Design, P.C. v. Mongolian House, Inc. F.3d 610, (7th Cir. 2014) (same); Schmidt Skolas F.3d (3d Cir. 2014) (same).
Similarly, if new counterclaim raising issues beyond scope most recent so late litigation it will cause prejudice counterdefendant or unduly expand litigation, counterclaim may be challenged (1) by Rule 12(b)(6) motion if relevant undisputed facts appear face pleadings or record, (2) by Rule motion if relevant undisputed facts can presented affidavit, or (3) by under 8(c) if relevant facts are dispute. Rule 12(f), authorizes insufficient improper material should used dismiss counterclaim. Day Moscow F.2d (2d Cir. 1992); Moore’s Federal Practice § 12.37[3] (3d ed. 2018); 5C Wright & Miller, § n.5 (3d ed. 2018).
In ruling on motion to dismiss new counterclaim, district court can either assess the new counterclaim’s legal sufficiency exercise the discretion the court would been entitled to use if the counterclaimant had moved under Rule to file new counterclaim.
In pending case, GEOMC’s use Rule 12(f) motion to strike Calmare’s new counterclaims (as distinguished striking matter them) was procedurally improper. Day F.2d 811. But GEOMC should faulted abiding District Court’s novel ruling permitted Calmare’s amended answer, new counterclaims, filed, subject GEOMC’s filing motion strike counterclaims. Although procedure was improper, Court’s ruling on GEOMC’s motion Calmare’s new counterclaims was functional equivalent ruling on Calmare’s its under include new counterclaims amended GEOMC’s second complaint. We will therefore consider dismissal ruling substantive merits.
Because second late litigation, added only claim breach contract, new counterclaims were properly tested relation only claim. Calmare’s counterclaims endeavored respond matters beyond the scope that added claim. The first counterclaim alleged that GEOMC breached license by entering into agreement with Radiant Health Management Corp. (“Radiant”), entity not the litigation up that point. The second and sixth alleged that GEOMC tortiously interfered with the License by interactions Radiant. The fifth alleged that the previous allegations concerning Radiant constituted unfair competition violation the Lanham Act and state law. The third alleged that GEOMC should known that Calmare’s CEO lacked authority execute Security Agreement and Agreement was unenforceable.
The District Court rejected four counterclaims concerning Radiant ground prejudice, stating these counterclaims would “greatly expand relatively narrow scope this case” “substantially increase[e] cost time required litigate this matter” adding “contractual agreements numerous third parties not named” lawsuit. GEOMC WL at *6. rejected third counterclaim because it “does include any factual allegations would support claim, nor does it describe legal basis damages sought.” Id. *5. Rejecting counterclaims concerning Radiant was within Court’s discretion because, late stage case, their *23 presentation would prejudicially expanded litigation, third counterclaim was properly rejected factually legally deficient.
Conclusion The ruling striking Calmare’s two defenses rejecting five counterclaims affirmed. case remanded further proceedings consistent summary order day.
[1] Clerk directed official caption above.
[2] also ruled if Calmare wished seek leave file third party it “must submit proposed third party does contain any counterclaims against [GEOMC]” plus supporting memorandum. Dist. Ct. Dkt. ECF No. 136.
[3] standards appear never been considered Supreme Court. In two original jurisdiction cases, struck defense, Washington Oregon S. Ct. (1932), Missouri Chicago Burlington, & Quincy R.R. Co. U.S. (1916), but did discuss standard granting defense.
[4] 12(f) authorizes court act “on own” “on made party either before responding or, if response allowed, within days after being served pleading.” Fed. R. Civ. P. 12(f)(1), (2).
[5] The McCaskey formulation converted Salcer wording no “state the facts could proved” support into “no question fact” such purpose. The McCaskey formulation suggests disputed fact, but perhaps legally sufficient fact (or set facts) was meant.
[6] The three factors listed in McCaskey were repeated in identical words in S.E.C. v. KPMG LLP , No. 03 Civ. 671 (DLC), 2003 WL 21976733, *2 (S.D.N.Y. Aug. 20, 2003), citing McCaskey . The three factors listed in KPMG were repeated, in almost exact words, in De Beers LV Trademark Ltd. v. DeBeers Diamond Syndicate. Inc. No. Civ. 4099 (DLC), WL *3 (S.D.N.Y. May 18, 2005), citing KPMG . De Beers where defenses were filed beyond days after complaint, changed wording first two factors from “there is” “there must be,” inserted “substantial” before “question law” in second factor, changed wording third factor from “would be” “must be,” inserted “the” before “inclusion.” With these slight changes, three factors were repeated identical words in Specialty Minerals, Inc. Pluess Staufer AG F. Supp. 2d (S.D.N.Y. 2005), citing De Beers, were repeated identical words Coach, Inc. Kmart Corps ., F. Supp. 2d (S.D.N.Y. 2010), quoting Specialty Minerals . defenses Coach were more than days after but apparently pursuant leave file under 15.
[7] Tucker quoted wording three factors from Impulsive Music v. Pomodoro Grill, Inc. , No. 08 CV ‐ 6293, 2008 WL 4998474, *2 (W.D.N.Y. 2008), which had quoted them from Roe v. City New York , F. Supp. 2d 495, 510 (S.D.N.Y. 2001). Roe quoted them from Koch v. Dwyer , No. Civ. 5519(RPP), WL *1 (S.D.N.Y. Sept. 29, 2000), adding “s” “allegation” first factor. Koch , which concerned motion strike allegations defenses, drew formulation three Tucker factors from Wine Markets International, Inc. v. Bass F.R.D. (E.D.N.Y. 1998), which concerned motion strike immaterial impertinent matter from complaint. Wine Markets drew Tucker factors from Laverpool New York City Transit Authority F. Supp. (E.D.N.Y. 1991), concerned immaterial impertinent matter from complaint. Laverpool had drawn three factors three different sources: Lipsky Commonwealth United Corp. F.2d
[9] described context Iqbal one “where we are impelled give real content concept qualified immunity high level officials who must neither deterred nor detracted vigorous performance their duties.” U.S. 686.
[10] If plaintiff’s only amends claim previously made, defendant, though obliged respond, could usually had interval between
[11] We no need consider 13’s distinction between compulsory permissive counterclaims. Fed. R. Civ. P. 13(a), (b).
[12] Four approaches issue been identified new counterclaims asserted amended that responds amended complaint. A so ‐ called “narrow approach” Moore’s Federal Practice § 15.17[6], suggests new counterclaim “had be tailored specifically address amendments complaint,” id . A so called “permissive approach,” id . suggests new counterclaims may included amended “without leave court, regardless nature complaint,” id. A so called “moderate approach,” id. suggests counterclaims may “without seeking permission if