SAS Institute Inc. v. Akin Gump Strauss Hauer & Feld, LLP et al, No. 5:2010cv00101 - Document 64 (E.D.N.C. 2011)
Court Description: ORDER granting in part and denying in part 32 Motion to Strike; adopting Report and Recommendation re 45 Memorandum and Recommendation. Signed by Senior Judge Malcolm J. Howard on 11/9/2011. (Heath, D.)
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SAS Institute Inc. v. Akin Gump Strauss Hauer & Feld, LLP et al Doc. 64 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:10-CV-10l-H SAS INSTITUTE INC., ) ) ) ) ) ) Plaintiff, v. ORDER ) ) AKIN GUMP STRAUSS HAUER FELD, LLP and MICHAEL L KIKLIS, ) & ) ) ) ) Defendants. This matter is before the court on plaintiff's motion to strike defendants' fifth, Rule 12 (f) of Federal Rules Defendants have United the States Memorandum responded, Magistrate and recommending ninth and tenth defenses pursuant to and Judge Recommendation that plaintiff's part and denied in part. of Civil [DE #32]. has filed a A. plaintiff Procedure Webb issued William (M&R) motion on to June strike 27, be reply. a 2011, granted in The parties have filed objections as well as responses to the obj ections. This matter is ripe for adjudication. Following filed an denial of answer on April their 5, motion 2011, to denying dismiss, all defendants liability and Dockets.Justia.com asserting instant thirteen affirmative motion to strike defenses. contending Plaintiff that filed defendants' the fifth, ninth and tenth defenses are insufficient as a matter of law and should be stricken. Plaintiff also argues that the factual allegations contained in paragraph 37 should be stricken because these allegations relate to the insufficient defenses. Rule may 12 (f) strike redundant, provides, from a pleading immaterial, court may act party. " Fed. in pertinent part an R. Civ. insufficient impertinent, on its own; P. that "[t] he defense court or or scandalous matter. or any The on motion made by a The granting of such relief, 12(f). however, has been long considered to be "a drastic remedy which is disfavored by the courts and infrequently granted." Palmer v. Oakland Farms, Inc. 2010 WL 2605179 (W.O. Va. June 24, 2010). Rule 12 (f) motions "are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic." Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001). Fifth Affirmative Defense In their fifth affirmative defense, defendants allege: has mischaracterized to the United States District Court Texas and to this Court the facts related to [Defendant] 2 "SAS in Kiklis' representation of SAS, and SAS does not have clean hands, is pled in bar of this action." (Answer at 9.) which Judge Webb recommends that this portion of plaintiff's motion to strike be denied because if, as defendants allege, plaintiff does not have clean hands, plaintiff equitable relief. would be See Wor ldcom, prevented Inc. v. from Boyne, obtaining 68 Fed. Appx. 447, 451 (4th Cir. 2003) Plaintiff objects to this recommendation, arguing that a defendant may not assert the defense of unclean hands where that defense is premised giving rise on to the conduct lawsuit. unrelated Plaintiff defense of unclean hands to apply, to the contends transaction that for a plaintiff must have acted See, in some wrongful manner during the transaction at issue. ~, bar Zukowski v. Dunton, recovery wrongful under action the 650 F.2d 30, clean hands against the defendant 35 (4th Cir. doctrine, must result the 1981) ("to plaintiff's from the same transaction.") . At this light most "unclean Therefore, stage of favorable hands" this may litigation, to the defendant, ultimately court viewing agrees prove with it a the the is defense in the unclear whether legitimate magistrate defense. judge's recommendation and DENIES that portion of plaintiff's motion to strike that relates to the Fifth affirmative defense. 3 Ninth and Tenth Affirmative Defenses In their Ninth Affirmative Defense, defendants allege: In bar to the claims of the Plaintiff, the Defendants allege on information and belief that the Plaintiff filed this lawsuit against the Defendants at the same time that it filed a motion in Texas to disqualify the Defendants as counsel for Juxtacomm, and that such actions were a ploy to force Juxtacomm either to dismiss with prejudice the Plaintiff and Dataflux as defendants in the JuxtaComm-Texas Software, LLC Axway Inc. et al., CAN 6:10-CV-000ll (E.D. Texas) proceeding or to lose the Defendants as counsel for Juxtacomm, which Plaintiff knew Juxtacomm could not do because of Defendants' familiarity with the Juxtacomm case. (Answer at 9-10.) Similarly, in their Tenth Affirmative Defense, defendants allege: The filing of this action against Defendants, in conjunction with the simultaneous filing of the Motion to Disqualify Defendants as counsel for Juxtacommin the Texas litigation, constitute an abuse of process. (Answer at 10.) Defendants elaborate on these defenses as follows: The Defendants contend that SAS is using this action and its motion to disqualify in JuxtaComm II as a ploy to coerce JuxtaComm to dismiss it with prejudice as a defendant in that action. The Defendants are entitled to present this defense in challenge to the Plaintiff's credibility. The jury is entitled to hear evidence that this lawsuit is a smokescreen for SAS' actual goal, avoiding liability to JuxtaComm. A jury can easily conclude that the Plaintiff's claims lack merit upon hearing evidence as to the Plaintiff's scheme. 4 It is an abuse of process to bring a lawsuit to accomplish some purpose for which the process was not intended. Here, the Defendants contend that SAS brought this lawsuit for the purpose of coercing the dismissal of the patent infringement claims made against it in Texas. (Def. 's Resp. Mot. Strike at 6.) The magistrate jUdge agreed with plaintiff that abuse of process is more properly raised as a counterclaim and therefore recommends striking defenses Nine and Ten as well as granting leave to amend for defendants to assert such a counterclaim if desired. Defendants misunderstood defenses are plaintiff object, their not even arguing contentions. affirmative if the that magistrate Defendants defenses plaintiff's the that that the bar recovery by a allegations rather the defenses summarize the defendants' state judge are true, but theory for why the plaintiff would bring false claims based upon untrue allegations and why the plaintiff's allegation as to its reason is untruthful. In light of defendants' representation that their Ninth and Tenth Defenses are not affirmative defenses that operate to bar recover under Rule 8 of the Federal Rules of Civil Procedure, the court hereby STRIKES the following language from defendants' Ninth Defense: "In bar to the claims of the Plaintiff." 5 The remainder of defendants' 37 of defendants' plaintiff's Ninth and Tenth Defenses and paragraph answer are in response to the allegations of complaint. Plaintiff's motion to strike those portions of defendants' answer is DENIED. CONCLUSION For the foregoing reasons, plaintiff's motion to strike is GRANTED in Part and DENIED in part as detailed above. This o~day ~ of November 2011. ~ D_'------- J.~ Malcolm Senior United States District Judge At Greenville, NC #26 6
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