| S.D.N.Y. | Aug 4, 1943
Plaintiff’s motion to strike out the first, third and fourth defenses is denied. Even if plaintiff had not withdrawn so much of his motion as relates to the first defense, I still think it is entirely unnecessary to plead such a defense that the complaint fails to state a claim upon which relief can be granted. Defendants say that they believe it is necessary to set it out in their answer because of Rule 12(b) (g) (h), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, contending that if not pleaded, it is waived. The failure of a complaint to state a claim makes it vulnerable at any stage of the action, and a motion for its dismissal upon such ground can be made, in my opinion, at any time, before or after pleading, or upon the trial. I think this conclusion necessarily so from that portion of Rule 12(h) in which is stated that a party waives all defenses not presented except “that the defense of failure to state a claim upon which relief can be granted * * * may also be made * * * by motion for judgment on the pleadings or at the trial on the merits.”
The second defense, consisting as it does of denials and admissions, is not a defense. Denials never were and are not now defenses. The third defense of fair comment attempts to allege facts which as fair comment may or may not justify the statements in the criticized article of which plaintiff complains. Whether the proof will be sufficient for that purpose is reserved for the trial. There is enough alleged in my opinion to present the question. The same may be said of the fourth defense of justification, incorporating as it does most of the allegations of the third defense. Personally, I cannot see how the additional matter pleaded in paragraphs 42 to 44 inclusive, is proper, but whether admissible is also a question for the trial court.