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10. What is the purchaser's best response to the seller's answer?
A purchaser filed a federal diversity action against a seller, alleging breach of contract. The seller answered the complaint and included as a separate defense an allegation that the purchaser had brought and lost a similar contract claim against a different seller three years earlier, and that this history represented a pattern of filing frivolous lawsuits. The purchaser believes that the earlier lawsuit was factually completely different from the current one and is therefore irrelevant.
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Most courts are reluctant to strike material from a pleading. Most judges feel that the pleader should be given an opportunity to show on the merits that the material in question is founded in fact, and is not immaterial, scandalous, or otherwise violative of FRCP 12(f).
FRCP 11 requires that «[b]y presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances» that «the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.» If a party violates these requirements, the court may impose appropriate sanctions.
D is correct. The purchaser's best response to the seller's answer is to move to strike the separate defense (the claim that the purchaser has a pattern of filing frivolous lawsuits) as irrelevant. This is because FRCP 12(f) allows a party to file a motion to strike an insufficient and irrelevant defense within 21 days of service of the pleading, which includes the answer filed by the seller here.
A is incorrect. At this stage of the proceedings, the purchaser's BEST response to the seller's answer is to move to strike the defense regarding frivolous lawsuits as insufficient and irrelevant under FRE 12(f). If the motion to strike is denied, the purchaser can then file a reply to the seller's answer.
B is incorrect. Even though FRCP 11 allows for sanctions to be imposed when a party violates the requirements of the Rule, the seller's conduct does not appear to be based on improper motives, such as delay, harassment, or knowingly baseless claims. In fact, the claim does appear to be based in fact. As a result, moving for sanctions is not appropriate at this point in the proceedings.
C is incorrect. If the purchaser were to amend the complaint and add allegations about the differences between the lawsuits, it would not be removing the defense entirely. As such, this is not the best course of action.