92 F.R.D. 494 | S.D.N.Y. | 1981
OPINION
This is a “bad faith” action against defendant insurance companies for failure to settle a claim, and for malpractice against the attorney designated by the insurance companies to represent the insured. The claim arose out of an automobile accident in which the insured struck the plaintiff’s infant son. Plaintiff made a settlement offer to the insurer for the injuries incurred by her son in the amount of $10,000, the full amount of the policy. Plaintiff alleges that the insurer refused the offer and thereafter, upon a trial, plaintiff’s son recovered a judgment in the sum of $420,850.25 against the insured. The insured, confronted with
Motions to strike a defense are not generally favored and will be denied if the defense is sufficient as a matter of law or if it fairly presents a question of law or fact.
there is no question of law or fact that should be heard on the merits.
Paragraph 7 of the answer asserts lack of subject matter jurisdiction, and plaintiff argues that it should be stricken because the Court in its previous opinion “conclusively ruled that it has subject matter jurisdiction based upon diversity of citizenship.” This Court, however, is “duty bound” to dismiss an action whenever it appears that jurisdiction over the subject matter is lacking.
In paragraph 10, defendants allege that plaintiff’s assignor has retained a pecuniary or financial interest in the second cause of action for punitive damages and therefore is an indispensable party. Defendants raised the same factual issue in their motion to dismiss, where they alleged that the assignment had been improperly and collusively made for the purpose of creating diversity jurisdiction. They argued that plaintiff had failed to show that the assignment was real and not merely colorable. In support they stated, as they do now in their affirmative defense, that
*497 [t]he Second Cause of Action seeks punitive damages far in excess of the amount of the judgment obtained, in which there is no declaration whether the assignor reserves any right in said cause of action ....6
In denying defendants’ motion, this Court rejected their allegation that the assignors had retained a pecuniary or financial interest in the action, finding instead that “[t]he assignors by the terms of the assignment have assigned their rights in a bad faith action they have against the insurer.”
Review of the assignment documents themselves compel this conclusion. The documents assign
all right, title and interest, claims, causes of action, choses in action, of any nature, kind or description, which each [assignor] individually or collectively has or may have against the said EMPIRE MUTUAL INSURANCE COMPANY, its agents, servants or employees, in any way arising out of [the insurance policy underlying the dispute herein].8
This assignment indicates unambiguously that the assignors retained no interest in this action. Moreover, the assignment term is part of a written, integrated and unambiguous contract. Consequently, defendants cannot refute or vary the clear meaning of the assignment with extrinsic evidence of the assignors’ alleged retention of
an interest.
The affirmative defense asserted in paragraphs 11, 12 and 13 relate only to defendant Raymond J. MacDonnell, the attorney whom plaintiff accuses of malpractice. Paragraph 11 asserts that the Court lacks personal jurisdiction over the defendant based upon a claim that service of process upon him was improper. He contends that service upon him by certified mail, though sanctioned by local Civil Rule 47, violated Rule 4(d)(1) of the Federal Rules of Civil Procedure. However, under Federal Rule of Civil Procedure 12(h)(1), defendant waived this defense of insufficiency of service of process by omitting it from defendants’ pre-answer motion to dismiss.
Paragraph 12 asserts that the action against defendant MacDonnell is barred by the statute of limitations. Plaintiff argues that a three-year limitation period applies to the malpractice action against MacDonnell
Defendants do not object to the motion to strike with regard to paragraph 13 of their
answer and the motion is granted as to this paragraph.
Finally, paragraph 8 asserts as an affirmative defense “[t]hat the Complaint herein fails to state a claim upon which relief can be granted.” The paragraph states as an affirmative pleading what could be proved under a general denial. However, even though redundant, there is no prejudicial harm to plaintiff and the defense need not be stricken.
In summary, plaintiff’s motion to strike is granted as to paragraphs 10, 11 and 13 of the answer, and is denied as to paragraphs 7, 8 and 12.
So ordered.
. Oppel v. Empire Mutual Ins. Co., 517 F.Supp. 1305 (S.D.N.Y. 1981).
. Wellman v. Dickinson, 79 F.R.D. 341, 349 (S.D.N.Y. 1978); Systems Corp. v. American Tel. & Tel. Co., 60 F.R.D. 692, 694 (S.D.N.Y. 1973); Laub v. Genway Corp., 60 F.R.D. 462, 465-66 (S.D.N.Y. 1973); Sample v. Gotham Football Club, Inc., 59 F.R.D. 160, 168-69 (S.D.N.Y.1973); Carter-Wallace, Inc. v. Riverton Laboratories, Inc., 47 F.R.D. 366, 367 (S.D.N.Y. 1969); United States v. Arnhold and S. Bieichroeder, Inc., 96 F.Supp. 240, 243 (S.D.N.Y. 1951); 2A Moore’s Federal Practice ¶ 12.21, at 2437 (2d ed. 1975).
. See Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134 (2d Cir.) (“No one will suggest that the first judge himself may not change his mind and overrule his own order”), appeal dismissed per stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956).
. Slotkin v. Citizens Cas. Co. of N. Y., 614 F.2d 301, 312 (2d Cir. 1979), cert. denied sub nom. American Mutual Ins. Co. v. Slotkin, 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980); First Nat’I Bank of Hollywood v. American Foam Rubber Corp., 530 F.2d 450, 453 n. 3 (2d Cir.), cert. denied sub nom. Bushman v. American Foam Rubber Corp., 429 U.S. 858, 97 S.Ct. 157, 50 L.Ed.2d 135 (1976).
. F.R.Civ.P. 12(h)(3); e.g., Clark v. Paul Gray, Inc., 306 U.S. 583, 588, 59 S.Ct. 744, 748, 83 L.Ed. 1001 (1939); McLearn v. Cowen & Co., 660 F.2d 845 (2d Cir. 1981) (Lumbard, J.); United States v. Burmah Oil Co., 558 F.2d 43, 46 (2d Cir.), cert. denied, 434 U.S. 967, 98 S.Ct. 511, 54 L.Ed.2d 454 (1972); Thompson v. N.Y. Cent. R.R., 361 F.2d 137, 144-45 (2d Cir. 1966).
. Affidavit of Martin K. Kahn in Support of Motion to Dismiss ¶ 12.
. Oppel v. Empire Mutual Ins. Co., 517 F.Supp. 1305, 1307 (S.D.N.Y.1981).
. A second document repeats this language except to substitute defendant “ALLCITY INSURANCE COMPANY” for defendant “EMPIRE MUTUAL INSURANCE COMPANY.”
. See Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447, 451 (2d Cir. 1977); Meinrath v. Singer Co., 482 F.Supp. 457, 460 (S.D.N.Y.1979); Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d 372, 300 N.Y.S.2d 817, 248 N.E.2d 576 (1969); In re Silberman’s Will, 23 N.Y.2d 98, 295 N.Y.S.2d 478, 242 N.E.2d 736 (1968); Oxford Commercial Corp. v. Landau, 12 N.Y.2d 362, 239 N.Y.S.2d 865, 190 N.E.2d 230 (1963); Fogelson v. Rackfay Const. Co., 300 N.Y. 334, 90 N.E.2d 881 (1950); Vinciguerra v. State, 38 A.D.2d 607, 326 N.Y.S.2d 293, 295 (1971).
. Extrinsic evidence of fraud is admissible to challenge even an integrated and unambiguous contract. However, defendants have not specifically alleged fraud in their affirmative defense, as is required under F.R.Civ.P. 9(b).
. See Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y.1976).
Since defendant received actual notice of the suit, there is no due process problem in applying Rule 12(h)(1) and deeming defendant to have waived his defense of lack of personal jurisdiction by failing to raise it in a timely fashion.
. N.Y.C.P.L.R. § 214(6).
. Citibank v. Suthers, 68 A.D.2d 790, 418 N.Y.S.2d 679 (1979); Gilbert Properties, Inc. v. Mill-
. Cf. Sample v. Gotham Football Club, Inc., 59 F.R.D. 160, 169 (S.D.N.Y.1973) (motions to strike have been denied even where procedurally appropriate and well founded where no showing of prejudice to moving party); Federated Dep’t Stores, Inc. v. Grinnell Corp., 287 F.Supp. 744, 747 (S.D.N.Y.1968); Lopez v. Resort Airlines, Inc., 18 F.R.D. 37, 40, 41 (S.D.N.Y.1955); Affiliated Music Enterprises, Inc. v. Sesac, Inc., 17 F.R.D. 509, 511 (S.D.N.Y.1955); Tivoli Realty, Inc. v. Paramount Pictures, Inc., 80 F.Supp. 800, 803 (D.Del.1948).
. See Sample v. Gotham Football Club, Inc., 59 F.R.D. 160, 169 (S.D.N.Y.1973); Lopez v. Resort Airlines, Inc., 18 F.R.D. 37, 40, 41 (S.D. N.Y.1955); Affiliated Music Enterprises, Inc. v. Sesac, Inc., 17 F.R.D. 509, 511-12 (S.D.N.Y.1955); Tivoli Realty, Inc. v. Paramount Pictures, Inc., 80 F.Supp. 800, 803 (D.Del.1948). Cf. Federated Dep’t Stores, Inc. v. Grinnell Corp., 287 F.Supp. 744, 747 (S.D.N.Y.1968).