Abdou v. Walker

Background

Shareef Abdou was the whistleblower claimant in a successful lawsuit against Bank of America. He received a $48 million award from a $300 million settlement. His former attorneys received $15.625 million from that award. Four claims remained in Abdou’s case, challenging whether that fee share was reasonable: breach of contract, professional negligence, unjust enrichment, and a request for relief under the court’s inherent authority.

This opinion addressed Abdou’s motion under Federal Rule of Civil Procedure 12(f). That rule allows a court to remove an insufficient defense or redundant, immaterial, impertinent, or scandalous matter from a pleading. Abdou moved to strike defenses and statements in an answer filed by Joseph Bird and in an answer filed jointly by Lori Ann Walker, as executrix of Brian Howard Mahany’s estate, and the Mahany firms.

Bird’s Answer

The court declined to strike Bird’s answer as untimely. Abdou had not adequately developed that argument in his opening brief, and the court also found that striking the answer would have harsh consequences. The court found no basis to conclude that Bird’s delay was willful, found no explained prejudice to Abdou from the delay, and noted that striking the answer could effectively eliminate Bird’s defenses in a case seeking millions of dollars.

The court treated Bird’s amended answer as replacing the original answer. It declined to strike Bird’s nine affirmative defenses—including accord and satisfaction, release, settlement, failure to state a claim, statute of limitations, unclean hands, estoppel, laches, and a defense asserted by another defendant. The court found that the amended answer supplied enough factual detail and that Abdou had abandoned his challenge to the defenses’ sufficiency.

The court separately reviewed statements that Abdou claimed were redundant, immaterial, impertinent, or scandalous. It found that most of the challenged statements were relevant responses to Abdou’s allegations about his motives and background. The court did strike all statements in paragraph 70 concerning Abdou’s cognitive or emotional impairment. It relied on its earlier ruling that any such impairment was not relevant to the claims in this case.

Mahany Defendants’ Answer

Abdou’s motion to strike the affirmative defenses in the Mahany Defendants’ answer was moot because Abdou and those defendants had agreed to cure the answer without court intervention. The court therefore denied that portion of the motion as moot.

Disposition

The court denied Abdou’s motion to strike the Amended Bird Answer, except as to the statements in paragraph 70 relating to Abdou’s cognitive or emotional impairment. It denied as moot Abdou’s motion to strike the Mahany Defendants’ answer. The court also admonished Abdou to review the record and his strategic choices carefully before filing further potentially wasteful motions. Judge Paul A. Engelmayer directed the Clerk of Court to terminate the motion at Docket 121.