Is it true that, when it comes to pleadings, including both affirmative claims and affirmative defenses, you can’t go wrong by including more — indeed, including everything? Not necessarily. Federal Rule of Civil Procedure 8 is rife with repetition of the phrase “short and plain statement” — that’s what a claim for relief, or an affirmative defense, is supposed to be. New York’s CPLR section 3014 is even more demanding:
Every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain, as far as practicable, a single allegation. Reference to and incorporation of allegations may subsequently be by number. Prior statements in a pleading shall be deemed repeated or adopted subsequently in the same pleading whenever express repetition or adoption is unnecessary for a clear presentation of the subsequent matters. …
Yet we’ve all seen examples of “kitchen sink” pleading, both in complaints and answers — certainly, in New York, whether in state court or federal court. What is the deal?
Don’t blame me. In my contribution to the first edition of Business and Commercial Litigation in the Federal Courts, I wrote the following with respect to affirmative defenses (citations omitted) prior to laying out 21 fairly common defenses and their elements as a way of making it clear that, from my point of view (and that of my co-author, Clyde Szuch), all 21 should pretty much never be found in the same papers:
Fed. R. Civ. P. 11 governs all pleadings, including answers, affirmative defenses, and counterclaims. Therefore, counsel may assert only those affirmative defenses which, “to the best of [counsel’s] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” are warranted by the evidence and existing law. As long as counsel has conducted a reasonable inquiry and acts in good faith, there is nothing in the rules that would preclude the assertion of hypothetical, alternative, or inconsistent affirmative defenses. To the contrary, Fed. R. Civ. P. 8(d) authorizes just such pleading tactics, and counsel is generally free to explore every colorable approach to avoidance of liability. Expansive pleading will reduce the chance that a previously unknown or unappreciated defense will be waived and will obviate the need to obtain permission from plaintiff or the court to amend the answer. The two most obvious problems with this approach, of course, are that unsupported defenses are subject to summary dismissal (a situation which does not enhance defendant’s credibility with the judge) and that every additional defense increases the scope of discovery because plaintiff will be permitted to investigate the facts on which each defense is based.
Even worse, if too many unsupported affirmative defenses are alleged (or counsel applies the boilerplate approach to pleading), the obviously bogus defenses may taint or even disguise the meritorious ones. If, rather than including carefully-selected and relevant affirmative defenses, defendant instead throws up a laundry list of 25 common defenses, neither plaintiff nor the judge will take the matters seriously. Plaintiff may underestimate the efficacy of the few on-point defenses asserted when evaluating settlement possibilities, thereby delaying resolution of the matter. In extreme situations, plaintiff might even be able to convince the court that, by hiding valid defenses amidst worthless chaff, defendant failed to provide plaintiff with adequate notice of its affirmative defenses, especially if defendant failed to support the affirmative defenses during discovery. The inclusion of inapplicable defenses could also result in Rule 11 sanctions, especially if more than one specious assertion is made or the parties waste time and energy pursuing discovery on meritless defenses. The key, then, to a well-drafted answer that will forward, rather than hinder, the client’s interests is to consider the specific facts and allegations of the case before asserting those affirmative defenses that may actually make a difference.
That sounds very nice, but that’s just what some treatise says. I was discussing this issue with one of my partners, who had been looking with wonderment at a set of affirmative defenses that took up page after page . Most of the affirmative defenses listed could not possibly apply to the claim being answered. We wondered: Besides “just” good lawyering, is there anything out there to scare people into not doing kitchen sink pleading?
I did some research, focusing on the New York courts, where most of our lawyers practice. Here’s what I found.
Courts, including New York courts, are getting sick of it. In Servaas, Inc. v. Republic of Iraq, 09 CIV. 1862 RMB, 2012 WL 335654 (S.D.N.Y. Feb. 1, 2012), the court noted, “Both Defendants appear to have taken a “kitchen sink” approach to stating their affirmative defenses. Internet Law Library, Inc. v. Southridge Capital Mgmt., LLC, No. 01 Civ. 6600, 2005 WL 3370542, at *6 (S.D.N.Y. Dec. 12, 2005) (dismissing affirmative defenses where party “included in their pleadings an everything-but-the-kitchen-sink list of affirmative defenses that they do not even attempt to support”). Any affirmative defenses not discussed in Section (3) have been considered by the Court and rejected (for substantially the same reasons set forth in the balance of this decision).” Similarly, in Filstein v. Bromberg, 36 Misc. 3d 404, 412, 944 N.Y.S.2d 692, 699 (Sup. Ct. 2012), the court wrote:
The second branch of the husband’s motion seeks to dismiss the wife’s thirteen affirmative defenses and sixteen counterclaims. In his moving papers, the husband accuses the wife of “attempting to flood” the court with a “kitchen sink” consisting of “every affirmative defense and counterclaim she could think of, no matter how absurd.” To a large extent, the husband’s assessment is correct, especially as concerns the affirmative defenses. The majority of those defenses are pled in single sentences, and appear to have absolutely no basis in law or fact, particularly in light of this court’s finding that the no-divorce clause is unenforceable. Therefore, the wife’s second, third, fourth, fifth, sixth, seventh, eighth, tenth, eleventh, twelfth and thirteenth affirmative defenses merit no further discussion and must all be dismissed.
You might think from this that it is “no harm, no foul.” Why not include them if the worst thing that happens other than the touchy-feely stuff I wrote about above is they just get dismissed?
This is error. Sanctions have been imposed for such conduct. As the court wrote in Gotham Air Conditioning Serv., Inc. v. Heitner, 144 Misc. 2d 430, 431-32, 544 N.Y.S.2d 703, 704 (Civ. Ct. 1989):
[E]ach of the affirmative defenses is without merit and, plainly, should not have been interposed in the answer. Accordingly, the affirmative defenses are stricken. . . . In accordance with the authority afforded to the Court by 22 NYCRR Section 130.1, et seq., within 10 days after service of the order to be settled hereon, defendant partnership shall pay to plaintiff’s attorneys the sum of $400.00, an amount which the Court finds is sufficient in terms of the time to prepare the motion and the several Court appearances which were required.
See also Warner v. Levinson, 188 A.D.2d 268, 590 N.Y.S.2d 459, 460 (1992) (“Sanctions were properly imposed on defendants’ counsel’s frivolous conduct in bringing nineteen affirmative defenses, eight counterclaims and a third-party complaint that clearly lacked merit”); Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1375 (S.D. Fla. 2005) (awarding attorney’s fees to party under Rule 11 for having to defend against frivolous affirmative defenses); Gargin v. Morrell, 133 F.R.D. 504 (E.D. Mich. 1991) (pleading of affirmative defenses of statute of frauds and consent, in medical malpractice action, based only upon “concern” that defenses might apply and without a factual basis warranted imposition of Rule 11 sanctions).
So it’s not just a matter of saving a tree or two. You might save something else a lot nearer and dearer by doing the hard work of getting your claim, or your affirmative defenses, down to a “short and plain statement.” Like the Rule says.
