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Figaro v. Simon

United States District Court, D. New Jersey

July 9, 2015

DOMINIC FIGARO, JR., Plaintiff,
v.
ANDREW L. SIMON, M.D., and ANDREW L. SIMON, M.D., F.A.C.S., P.A. Defendants.

ORDER AND OPINION GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES

LOIS H. GOODMAN, Magistrate Judge.

Presently before the Court is a motion filed by Plaintiff Dominic Figaro, Jr. ("Plaintiff") to strike certain affirmative defenses (the "Motion"). [Docket Entry No. 10]. Defendants Andrew L. Simon, M.D. ("Simon") and Andrew L. Simon, MD., F.A.C.S., P.A. (collectively "Defendants") opposed the Motion. [Docket Entry No. 14]. Plaintiff filed a reply brief (the "Reply"). [Docket Entry No. 16]. The Court has considered the papers without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, the Court grants the Motion in part and denies it in part.

I. Relevant Facts and Procedural History

Plaintiff is a deaf individual with a limited proficiency in English who communicates primarily using American Sign Language. He filed suit against Defendants for wrongful and intentional discrimination on the basis of his disability. First Amended Complaint (the "Am. Compl.") ¶¶ 1, 4. [Docket Entry No. 6]. Defendant Simon is a surgeon who owns his own practice, specializing in urology and genitourinary surgery. Defendants' Answer to Plaintiff's First Amended Complaint, Affirmative Defenses and Jury Demand (the "Answer") ¶¶ 5-6. [Docket Entry No. 9].

Plaintiff states that he was a patient of Defendants' and that they refused his request for a sign language interpreter on each of his visits to Defendants' office. Am. Compl. ¶ 10. Plaintiff also asserts that during his visit on May 19, 2014 (the "May 19 Visit"), one of Defendants' employees attempted to communicate with him via handwritten notes and recommended that Plaintiff transfer to another health care provider. Id. at ¶¶ 10-13. Plaintiff contends that Defendants failed to properly train their employees in policies of non-discrimination regarding deaf patients and refused to provide effective means of communication despite Plaintiff's repeated requests. Am. Compl. ¶ 2. Plaintiff brought suit alleging violations of the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. (the "NJLAD"); the Americans with Disabilities Act, 42 U.S.C. § 12182 (the "ADA"); and the Rehabilitation Act, 29 U.S.C. § 794, and argue that Defendants willfully and knowingly committed repeated acts of intentional discrimination against him. Id. at ¶ 20.

Defendants deny having any knowledge as to how Plaintiff communicates and deny ever refusing Plaintiff reasonable accommodations for his disability. Answer ¶¶ 1-2. Defendants also deny suggesting Plaintiff transfer to another doctor and deny that Plaintiff requested an interpreter on any of his visits to Defendants' office. Answer ¶¶ 8, 10-15. Finally, Defendants state that Plaintiff assaulted a staff member and voluntarily rejected the benefit of Defendants' services after Defendants told Plaintiff that his health insurance required him to first get a referral before visiting Defendants' office. Answer ¶¶ 1-2. In their answer, Defendants assert several affirmative defenses, of which three are subject to the Motion.[1] Answer p. 7-8.

II. Parties' Arguments

Plaintiff challenges three affirmative defenses: unclean hands, estoppel, and laches; lack of subject matter jurisdiction; and that the interactions at issue did not concern medical care. He alleges that Defendants have not sufficiently explained or provided factual support to suggest that these asserted affirmative defenses are applicable to this case. Plaintiff's Memorandum of Law in Support of its Motion to Strike Defendant's Affirmative Defenses ("Mem. in Supp.") at 6. [Docket Entry No. 10-1]. He also states that the elements necessary to satisfy the affirmative defenses cannot possibly be inferred from the facts alleged in the Answer and the affirmative defenses are therefore insufficient. Id. at 7. Plaintiff further argues that lack of subject matter jurisdiction is not an affirmative defense, but would only be proper if filed as a motion under Federal Rule of Civil Procedure 12(b)(2). Id. at 8. With regard to both Defendants' tenth and seventeenth affirmative defenses, Plaintiff states that the rebuttal of facts and mere denial and restatement of factual claims asserted in the Answer do not give rise to an affirmative defense. See Reply at 6; see also Mem. in Supp. at 9.

Defendants respond that Plaintiff's assault on Defendants' staff member implicates the affirmative defenses of unclean hands and estoppel. Brief of Defendants in Opposition to Plaintiff's Motion to Strike Certain of Defendants' Affirmative Defenses Under Fed.R.Civ.P. 12(f) ("Opp'n Brief") at 4. [Docket Entry No. 14]. Defendants argue that the sufficiency of the affirmative defenses of unclean hands and estoppel rests on disputed issues of fact and the Court should therefore not strike them. Id. at 3-4. Defendants state that the affirmative defense of laches is applicable because Plaintiff's allegations date back to April of 2011, but Plaintiff did not file suit until October 17, 2014. Id. at 3.

Defendants contend that the affirmative defense based on the lack of subject matter jurisdiction is appropriate because it relies upon disputed facts; if these facts are resolved in their favor, the case should be remanded to state court. Opp'n Brief at 6-7.

Regarding their last affirmative defense, that "on some or all of the dates in question, the interactions between Plaintiff and Defendants did not concern medical care, " Defendants point out that Plaintiff's allegations themselves support the truth of the affirmative defense. Opp'n Brief at 9. According to the Amended Complaint, Plaintiff was not actually treated by Defendants on the May 19 Visit, so that visit did not concern medical care. Id. As a result, Plaintiff cannot maintain causes of action under the NJLAD, the ADA, or the Rehabilitation Act with regard to the May 19 Visit. Id.

II. Legal Standard

An affirmative defense is defined as an assertion of facts that, if true, will defeat the plaintiff's claim, even if all of the allegations in the complaint are true. Black's Law Dictionary (10th ed. 2014). Affirmative defenses are subject to Federal Rule of Civil Procedure 12(f), which governs motions to strike and permits courts to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Newborn Bros. Co., Inc v. Albion Eng'g Co., 200 F.R.D. 90, 93 (D.N.J. 2014) (citing Fed.R.Civ.P. 12(f)).

To determine whether affirmative defenses are sufficient, the Court must "accept all factual allegations in the Answers as true, construe the Answers in the light most favorable to Defendants, and determine whether, under any reasonable reading of the pleadings, Defendants may be entitled to relief." In re Gabapentin Patent Litigation, 648 F.Supp.2d 641, 648 (D.N.J. 2009). An affirmative defense can be stricken as insufficient if it: 1) could not possibly prevent recovery under any pleaded or inferable set of facts, and 2) its continuing presence in the pleadings would prejudice the adverse party. F.T.C. v. Hope Now, LLC, Civ. No. 09-1204 (JBS/JS), 2011 WL 883202, at *4 (D.N.J. Mar. 10, 2011); see also Gelman v. Rosen, Civ. No. 14-6790 (JBS/KMW), 2015 WL 1849903, at *1 (D.N.J. Apr. 22, 2015). The Third Circuit has held that "a court should not grant a motion to strike a defense unless the insufficiency of the defense is clearly apparent." Cipollone v. ...


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