Silk v. HCMC Legal, Inc.

Background

Scott Silk filed a corrected motion under Rule 12(f) of the Federal Rules of Civil Procedure, which allows a court to strike an insufficient defense from a pleading. He asked the court to require HCMC Legal, Inc., HC2, Inc., doing business as Hire Counsel, and McDermott Will & Emery LLP to amend their answers or, if they could not do so, to strike certain affirmative defenses.

The defendants responded by filing amended answers and briefs opposing Silk’s motion. They argued that the amended answers resolved the issues raised in the motion and made it moot. Silk’s reply did not address only the original motion; it asked the court to strike the defendants’ amended affirmative defenses based on undue hardship. The defendants then requested permission to file a sur-reply, arguing that Silk’s reply was procedurally improper. Silk opposed that request.

Court’s Analysis

The court denied the defendants’ request to file a sur-reply. Although it considered the arguments in the defendants’ letter, it concluded that a sur-reply was not warranted.

The court agreed that the amended answers superseded the original answers. Because Silk’s original motion addressed the original answers, the court held that the motion was moot and denied it as moot. The court explained that any challenge to the amended affirmative defenses required a new motion rather than a reply brief.

The court also cautioned Silk against filing a new motion to strike the undue-hardship defenses on the same grounds. It described the applicable three-part standard: there must be no factual question that could allow the defense to succeed, no substantial legal question that could allow it to succeed, and prejudice to the plaintiff from including the defense.

The court found Silk’s arguments unpersuasive. The amended answers alleged that allowing Silk to work from home full time would have imposed an undue hardship on McDermott because live attendance, real-time communication, and onsite work were important to the project and to document and information-technology security. The court said Silk had not identified specific deficiencies in those allegations and had offered only a conclusory assertion that the defenses would complicate discovery and trial.

Disposition

Judge Katherine Polk Failla denied the defendants’ application for leave to file a sur-reply and denied Silk’s motion to strike as moot. The court also stated that it did not expect Silk’s arguments to provide a basis for striking the undue-hardship defenses, but it did not rule on a new motion because none had been filed. The Clerk was directed to terminate the motions at docket entries 25 and 34.