Thursday, May 27, 2021

Boilerplate Affirmative Defenses Stricken



In the case of Greenspan v. Platinum Healthcare Group, LLC., No. 2: CV-05874-JDW (E.D. Pa. March 16, 2021 Wolson, J.) the court struck Affirmative Defenses from a Federal Court Answer filed by a Defendant in a case where the defendant failed to assert any allegations or cite to any facts or evidence that would give rise to a good faith basis to plead the defenses that were asserted.

The court found that the Defendant's Affirmative Defenses violated Rule 11 as they were pled with conditional language that indicated that the Defendant did not have evidence to support the assertion of the defenses at the time. Rather, the court seem to indicate that it felt that boilerplate defenses had been pled in the case.

While the court acknowledge that defense counsel only had a short time to investigate the case before the pleading deadlines, the court found that this did not excuse counsel from the requirement of having a good faith basis to assert Affirmative Defenses in an Answer. 

The court pointed out that defense counsel with limited time to investigate possible Affirmative Defenses could request an extension of time to file that Answer. The court stated that such request are routinely granted by Plaintiff’s attorneys and the courts as matter of courtesy.

The court additionally noted that the defendants have twenty-one (21) days for filing their Answer to file an amended Answer as of right under Rule F.R.C. P. 15.

The court also noted that defendants could thereafter request leave to file an amended Answer beyond the twenty-one (21) day period, which leave the court was required by the Rules to allow “when justice is so requires.”

In the Opinion, the court grandly stated that “its opinion will now be public record for counsel in this case and in future cases to use as a guide and pleading affirmative defenses.”

Given the court’s finding that the Defendant had violated Rule 11, the court issued the sanction of striking the Affirmative Defenses but did so without prejudice. The court noted that if the Defendant had a good faith basis to assert any Affirmative Defense, it could seek to assert them by filing an appropriate motion to amend its Answer.

The court ended the opinion by noting that “Pleadings are not an opportunity for lawyers to throw things against the wall and see what sticks.” The court noted that Rule 11 requires lawyers to give some thought to the assertions included in pleading before they are filed.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order of Court may be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

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