GEOMC Co., Ltd. v. Calmare Therapeutics Inc.

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17-3502-cv
GEOMC Co., Ltd. v. Calmare Therapeutics Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
Argued: September 11, 2018 Decided: March 12, 2019
Docket No. 17‐3502‐cv
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GEOMC CO., LTD.,
Plaintiff‐Counter‐Defendant‐Appellee,
v.
CALMARE THERAPEUTICS INCORPORATED,
Defendant‐Counter‐Claimant‐Appellant.1
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Before: NEWMAN, JACOBS, and POOLER, Circuit Judges.
Appeal from the Sept. 29, 2017, judgment of the District Court for the
District of Connecticut (Victor A. Bolden, District Judge), requiring Calmare
Therapeutics, Inc. (“Calmare”) to pay $10,352,170.41 to GEOMC Co., Ltd.
1 The Clerk is directed to amend the official caption as above.

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(“GEOMC”) after a bench trial of a contract dispute concerning sales of medical
devices for managing pain. Most of the claims on appeal have been adjudicated in
a summary order filed this day, which vacates the judgment and remands. This
opinion affirms the District Court’s ruling striking two affirmative defenses and
five counterclaims.
William Feldman, Haynes and Boone, LLP, New
York, NY for Defendant‐Counter‐Claimant‐
Appellant Calmare Therapeutics, Inc.
Kristen B. Weil, (Richard M. Zuckerman, on the
brief), Dentons US LLP, New York, NY for
Plaintiff‐Counter‐Defendant‐Appellee
GEOMC Co., Ltd.
JON O. NEWMAN, Circuit Judge:
This appeal in complicated litigation concerning a contract dispute merits
an opinion to clarify the standards for pleading affirmative defenses and granting
a motion to strike them, see Fed. R. Civ. P. 12(f), and for presenting and challenging
new counterclaims filed, or sought to be filed, in a responsive pleading to a second
amended complaint, see Fed. R. Civ. P. 15(a). Other matters raised by the appeal
have been adjudicated in a summary order filed this day.
Defendant‐Appellant Calmare Therapeutics, Inc. (“Calmare”), a Delaware
corporation, appeals from the Sept. 29, 2017, judgment of the District Court for the
District of Connecticut (Victor A. Bolden, District Judge) in favor of Plaintiff‐

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Appellee GEOMC Co., Ltd. (“GEOMC”), a South Korean corporation, entered
after a bench trial. The litigation concerns a dispute arising from sales of medical
devices for managing pain.
Background
Consideration of the District Court’s ruling striking two of Calmare’s
affirmative defenses and five of its counterclaims requires explication of the
procedural context of the ruling. GEOMC filed an amended complaint in October
2014, asserting five causes of action. Calmare filed an answer in December 2014,
asserting nine affirmative defenses, but no counterclaims. In September 2015,
almost a year later, Calmare sought leave to amend its answer to the amended
complaint to add several additional affirmative defenses and several
counterclaims. GEOMC opposed Calmare’s request and at the same time sought
leave to amend its amended complaint by adding a sixth cause of action.
Confronting an unusual situation, Judge Bolden fashioned an unusual
response. On June 13, 2016, he denied Calmare’s motion for leave to amend its
answer to GEOMC’s amended complaint, granted GEOMC’s motion for leave to
file a second amended complaint, and permitted Calmare to file an amended
answer to the second amended complaint “subject to [GEOMC’s] ability to move,
under Rule 12(f), to strike material in [Calmare’s] answer that [GEOMC] believes
exceeds the scope of permissible amendment.” Dist. Ct. Dkt. ECF Nos. 135, 136. In
effect, he authorized the Plaintiff to use a motion to strike under Rule 12(f) of the

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Federal Rules of Civil Procedure to raise whatever issues it would have raised in
opposition to the Defendant’s motion to amend its answer under Rule 15(a)(2).2
On June 15, 2016, GEOMC filed a second amended complaint, adding, as a
sixth cause of action, a claim for breach of contract. On June 30, 2016, Calmare filed
an answer to the second amended complaint, adding six affirmative defenses and
six counterclaims. On July 25, 2016, GEOMC moved to strike all of Calmare’s six
new affirmative defenses and five of its six new counterclaims. On Oct. 19, 2016,
the District Court granted in part and denied in part GEOMC’s motion to strike.
The Court denied the motion with respect to four affirmative defenses, and,
pertinent to the pending appeal, struck Calmare’s sixth and seventh affirmative
defenses and five counterclaims. See GEOMC Co. v. Calmare Therapeutics, Inc., No.
3:14‐CV‐01222 (VAB), 2016 WL 6122930, at *5‐6 (D. Conn. Oct. 19, 2016). Calmare
seeks review of that ruling.
Discussion
I. Striking Calmare’s Affirmative Defenses
The standards for determining the proper pleading of an affirmative defense
and for granting a motion to strike an affirmative defense have had a curious
2 The Court also ruled that if Calmare wished to seek leave to file a third‐party
complaint, it “must submit a proposed third‐party complaint that does not contain any
counterclaims against [GEOMC]” plus a supporting memorandum. Dist. Ct. Dkt. ECF
No. 136.

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evolution in this Circuit.3 Uncertainty has sometimes resulted from the fact that
district courts, which have made most of the rulings on sufficiency of affirmative
defenses and motions to strike them, have not always distinguished between
affirmative defenses in a timely filed answer and those later filed, either with or
without court permission to amend an answer, especially those filed in late stages
of litigation. Rule 12(a)(1)(A)(i) requires an answer to be filed within 21 days after
service of a summons and complaint. Rule 15(a)(1)(A) provides that a party is
entitled to amend its answer 21 days after serving it, Rule 15(a)(2) permits an
amended answer thereafter with the opposing party’s consent or leave of court,
which should be “freely give[n] . . . when justice so requires,” and Rule 15(a)(3)
provides: “Unless the court orders otherwise, any required response to an
amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading,
whichever is later.”
3 The standards appear never to have been considered by the Supreme Court. In
two original jurisdiction cases, the Court struck an affirmative defense, see Washington v.
Oregon, 52 S. Ct. 456 (1932), and Missouri v. Chicago, Burlington, & Quincy R.R. Co., 241
U.S. 533 (1916), but did not discuss the standard for granting a motion to strike an
affirmative defense.

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The starting point for analysis is Rule 12(f), which provides that a court may
strike “from a pleading” any “insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.”4 After the adoption of the Federal Rules of
Civil Procedure in 1938, the first time we considered the propriety of striking an
affirmative defense appears to be United States v. Oswego Falls Corp., 113 F.2d 322
(2d Cir. 1940). We there ruled that a defense, apparently timely filed, was properly
stricken because no facts were pleaded to support the defense. See id. at 325.
Shortly thereafter, we ruled, apparently for the first time, that an affirmative
defense was properly stricken because it was legally insufficient. See De Pasquale
v. Williams‐Bauer Corp., 151 F.2d 578, 580 (2d Cir. 1945); see also Schram v. Schwartz,
68 F.2d 699, 702 (2d Cir. 1934) (same; pre‐Rules decision).
Not until many years later did we endeavor to expand, even briefly, on the
pleading standard necessary for an affirmative defense to survive a motion to
strike. In William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935
(2d Cir. 1984) (“Salcer”), vacated on other grounds, 478 U.S. 1015 (1986), we stated
that a motion to strike an affirmative defense, apparently timely filed, will not be
4 Rule 12(f) authorizes a court to act “on its own” or “on motion made by a party
either before responding to the pleading or, if a response is not allowed, within 21 days
after being served with the pleading.” Fed. R. Civ. P. 12(f)(1), (2).

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granted unless “it appears to a certainty that plaintiffs would succeed despite any
state of the facts which could be proved in support of the defense.” Id. at 939
(internal quotation marks omitted). This formulation expansively phrased the
pleading standard with the wording then used by the Supreme Court in Conley v.
Gibson, 355 U.S. 41 (1957), for testing the sufficiency of a complaint: “[A] complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Id. at 45‐46. That wording, the Court ruled in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), “is best forgotten,” id. at 563, and was
replaced with a “plausibility standard,” id. at 560; see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (same).
Fifteen years after Salcer, a District Court in this Circuit purported to extract
from that opinion a three‐part test for striking a timely filed affirmative defense:
“In order to prevail on a motion to strike [an affirmative
defense], a plaintiff must show that: (1) there is no question of fact
which might allow the defense to succeed; (2) there is no question of
law which might allow the defense to succeed; and (3) the plaintiff
would be prejudiced by inclusion of the defense.”

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S.E.C. v. McCaskey, 56 F. Supp. 2d 323, 326 (S.D.N.Y. 1999). This formulation
divided Salcer’s reference to facts into two factors, one concerned with facts,5 and
the other concerned with law. The McCaskey formulation also added a third factor,
prejudice to the plaintiff, a factor not mentioned in Salcer.
After McCaskey, district courts in this Circuit repeated the three McCaskey
factors, initially in identical wording and later with only slight variations, in a
series of decisions, set out in the margin,6 culminating in Coach, Inc. v. Kmart Corps.,
756 F. Supp. 2d 421, 425‐26 (S.D.N.Y. 2010).
5 The McCaskey formulation converted the Salcer wording of no “state of the facts
which could be proved” to support the defense into “no question of fact” for such
purpose. The McCaskey formulation suggests a disputed fact, but perhaps a legally
sufficient fact (or set of facts) was meant.
6 The three factors listed in McCaskey were repeated in identical words in S.E.C. v.
KPMG LLP, No. 03 Civ. 671 (DLC), 2003 WL 21976733, at *2 (S.D.N.Y. Aug. 20, 2003),
citing McCaskey. The three factors listed in KPMG were repeated, in almost the exact
words, in De Beers LV Trademark Ltd. v. DeBeers Diamond Syndicate. Inc., No. 04 Civ. 4099
(DLC), 2005 WL 1164073, at *3 (S.D.N.Y. May 18, 2005), citing KPMG. De Beers, where the
affirmative defenses were filed beyond 21 days after the complaint, changed the wording
of the first two factors from “there is” to “there must be,” inserted “substantial” before
“question of law” in the second factor, changed the wording of the third factor from
“would be” to “must be,” and inserted “the” before “inclusion.” With these slight
changes, the three factors were repeated in identical words in Specialty Minerals, Inc. v.
Pluess‐Staufer AG, 395 F. Supp. 2d 109, 111 (S.D.N.Y. 2005), citing De Beers, and were
repeated in identical words in Coach, Inc. v. Kmart Corps., 756 F. Supp. 2d 421, 425‐26
(S.D.N.Y. 2010), quoting from Specialty Minerals. The affirmative defenses in Coach were
filed more than 21 days after the complaint, but apparently not pursuant to leave to file
under Rule 15.

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In the pending appeal, the District Court cited Coach for the proposition that
“‘ [i]f a court determines that a defense is legally insufficient, the court must next
determine whether inclusion of the defense would prejudice the plaintiff.’” Special
App’x 5 (quoting Coach, 756 F. Supp. 2d at 425‐26). The District Court also stated
the three relevant factors in terms somewhat different from those used in the
McCaskey formulation or in Coach. The Court said that the party moving to strike
a defense
“ordinarily must show that ‘(1) no evidence in support of the
allegations would be admissible; (2) the allegations have no bearing
on the issues in the case; and (3) permitting the allegations to stand
would result in prejudice to the movant.’”
Special App’x 4 (quoting Tucker v. American International Group, Inc., 936 F. Supp.
2d 1, 16 (D. Conn. 2013)). The three Tucker factors can be traced back through a
series of decisions, set out in the margin,7 that did not concern a motion to strike
7 Tucker quoted its wording of three factors from Impulsive Music v. Pomodoro Grill,
Inc., No. 08‐CV‐6293, 2008 WL 4998474, at *2 (W.D.N.Y. 2008), which had quoted them
from Roe v. City of New York, 151 F. Supp. 2d 495, 510 (S.D.N.Y. 2001). Roe quoted them
from Koch v. Dwyer, No. 98 Civ. 5519(RPP), 2000 WL 1458803, at *1 (S.D.N.Y. Sept. 29,
2000), adding an “s” to “allegation” in the first factor. Koch, which concerned a motion to
strike allegations of a complaint, not affirmative defenses, drew the formulation of the
three Tucker factors from Wine Markets International, Inc. v. Bass, 177 F.R.D. 128, 133
(E.D.N.Y. 1998), which concerned a motion to strike immaterial and impertinent matter
from a complaint. Wine Markets drew the Tucker factors from Laverpool v. New York City
Transit Authority, 760 F. Supp. 1046, 1060‐61 (E.D.N.Y. 1991), which concerned a motion
to strike immaterial and impertinent matter from a complaint. Laverpool had drawn the
three factors from three different sources: Lipsky v. Commonwealth United Corp., 551 F.2d

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affirmative defenses, but concerned a motion to strike either an allegation of a
complaint or material in a pleading.
Before adjudicating the propriety of the District Court’s striking two of
Calmare’s affirmative defenses, we take this occasion to clarify the factors relevant
to striking an affirmative defense. To avoid having district courts continue to
repeat the three‐factor formulation as worded in McCaskey, we consider each of
those factors in turn.
Whether the first of the McCaskey factors should be reworded in light of
Twombly, i.e., whether Twombly applies to the pleading of affirmative defenses, is
an issue that has divided the many district courts8 and commentators that have
considered it. Three comprehensive articles take three different approaches. One
887, 893 (2d Cir. 1976) (reference to certain evidence in pleading was immaterial because
that evidence would not be admissible), Fuchs Sugars & Syrups, Inc. v. Amstar Corp., 402
F. Supp. 636, 637‐38 (S.D.N.Y. 1975) (motion to strike references in amended complaint
as immaterial denied for lack of prejudice), and 5A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1382, at 683‐85 (2d ed. 1990) (allegations would result
in prejudice to movant).
8 Compare, e.g., Perez v. Gordon & Wong Law Group, P.C., No. 11‐CV‐03323‐LHK,
2012 WL 1029425, at *6‐8 (N.D. Cal. Mar. 26, 2012) (Twombly applicable to affirmative
defenses), HCRI TRS Acquirer, LLC v. Iwer, 708 F. Supp. 2d 687, 691 (N.D. Ohio 2010)
(same), and Tracy v. NVR, Inc., No. 04‐CV‐6541L, 2009 WL 3153150, at *7 (W.D.N.Y. Sept.
30, 2009) (same), with e.g., Leviton Manufacturing Co. v. Pass & Seymour, Inc., 264 F. Supp.
3d 421, 427 (E.D.N.Y. 2017) (Twombly not applicable to pleading affirmative defenses),
Hon Hai Precision Industry Co. v. Wi‐LAN, Inc., No. 12 Civ. 7900(SAS), 2013 WL 2322675,
at *9 (S.D.N.Y. May 28, 2013) (same), and Lane v. Page, 272 F.R.D. 581, 588‐97 (D.N.M. 2011)
(same).

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article favors applying Twombly to affirmative defenses. See Joseph A. Seiner,
Plausibility Beyond the Complaint, 53 Wm. & Mary L. Rev. 987 (2012). One opposes
applying Twombly to affirmative defenses. See Justin Rand, Tightening Twiqbal: Why
Plausibility Must Be Confined to the Complaint, 9 Fed. Cts. L. Rev. 79 (2016). One
proposes a “middle‐ground approach.” See Note, Nathan Pysno, Should Twombly
and Iqbal Apply to Affirmative Defenses?, 64 Vand. L. Rev. 1633, 1670 (2011); see also
2 Moore’s Federal Practice § 12.37[4] (3d ed. 2018) (“If a plaintiff files a motion to
strike one or more defenses, the better view is that the plausibility standard of
Twombly does not apply in judging the adequacy of the defendant’s pleaded
defenses, although there is some authority to the contrary.” (footnote omitted)); 5
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1274 (3d ed.
2018) (taking no position on whether Twombly applies to pleading affirmative
defenses).
We conclude that the plausibility standard of Twombly applies to
determining the sufficiency of all pleadings, including the pleading of an
affirmative defense, but with recognition that, as the Supreme Court explained in
Iqbal, applying the plausibility standard to any pleading is a “context‐specific”

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task. 556 U.S. at 679.9 The Court described the context of Iqbal as one “where we
are impelled to give real content to the concept of qualified immunity for high‐
level officials who must be neither deterred nor detracted from the vigorous
performance of their duties.” 556 U.S. at 686.
The key aspect of the context relevant to the standard for pleading an
affirmative defense is that an affirmative defense, rather than a complaint, is at
issue. This is relevant to the degree of rigor appropriate for testing the pleading of
an affirmative defense. The pleader of a complaint has the entire time of the
relevant statute of limitations to gather facts necessary to satisfy the plausibility
standard. By contrast, the pleader of an affirmative defense has only the 21‐day
interval to respond to an original complaint, see Fed. R. Civ. P. 12(a)(1)(A)(i), the
21‐day interval to amend, without court permission, an answer that requires a
responsive pleading, see Fed. R. Civ. P. 15(a)(1)(B), or the 14‐day interval to file a
required response to an amended pleading that makes a new claim, see Fed. R. Civ.
P. 15(a)(3).10 That aspect of the context matters. In addition, the relevant context
9 The Court described the context of Iqbal as one “where we are impelled to give
real content to the concept of qualified immunity for high‐level officials who must be
neither deterred nor detracted from the vigorous performance of their duties.” 556 U.S.
at 686.
10 If a plaintiff’s amended pleading only amends a claim previously made, the
defendant, though obliged to respond, could usually have had the interval between the

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will be shaped by the nature of the affirmative defense. For example, the facts
needed to plead a statute‐of‐limitations defense will usually be readily available;
the facts needed to plead an ultra vires defense, for example, may not be readily
known to the defendant, a circumstance warranting a relaxed application of the
plausibility standard.
The second factor identified in McCaskey needs no revision. There is no
dispute that an affirmative defense is improper and should be stricken if it is a
legally insufficient basis for precluding a plaintiff from prevailing on its claims.
Whether the third of the McCaskey factors, prejudice, should be a basis for
dismissing or opposing the addition of an otherwise valid affirmative defense will
normally depend on when the defense is presented. A factually sufficient and
legally valid defense should always be allowed if timely filed even if it will
prejudice the plaintiff by expanding the scope of the litigation. A defendant with
such a defense is entitled to a full opportunity to assert it and have it adjudicated
before a plaintiff may impose liability. See Lucente v. International Business Machines
Corp., 310 F.3d 243, 260 (2d Cir. 2002). On the other hand, prejudice may be
considered and, in some cases, may be determinative, where a defense is presented
plaintiff’s first and amended complaints to amend its original answer to include
affirmative defenses.

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beyond the normal time limits of the Rules, especially at a late stage in the
litigation, and challenged by a motion to dismiss or opposed by opposition to a
Rule 15(a) motion. See Anderson v. National Producing Co., 253 F. 2d 834, 838 (2d Cir.
1958) (motion made on eighth day of trial to amend answer to add affirmative
defense properly denied).
With these considerations in mind, we consider the District Court’s ruling
in this case. Granting in part a motion by GEOMC, the District Court struck
Calmare’s sixth and seventh affirmative defenses asserted in its answer to
GEOMC’s second amended complaint. The sixth defense alleged that GEOMC’s
damages were caused by its own negligence; the seventh defense alleged that
GEOMC failed to join a necessary party. Although the District Court had
permitted Calmare to file this answer, the Court had cautioned that Calmare’s
answer would be subject to a motion to strike by GEOMC. The Court stated that
these defenses “introduce vague allegations regarding the actions of unnamed
third parties, raising concerns of both legal sufficiency and prejudice to GEOMC.”
GEOMC, 2016 WL 6122930, at *5.
Striking these two affirmative defenses was within the District Court’s
discretion. The sixth defense lacked any indication of what conduct by GEOMC or

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others might have been a defense to the breach of contract claim added by the
second amended complaint. The seventh defense lacked any indication of which
party needed to be joined or why. Calmare needed to support these defenses with
some factual allegations to make them plausible. Moreover, both affirmative
defenses were presented at a late stage of the litigation. Although the defenses
were presented soon after GEOMC filed its second amended complaint, they were
not aimed at the one new cause of action in that complaint but sought to challenge
claims made nearly a year earlier in the first amended complaint. Expanding the
litigation at that stage would have been prejudicial to GEOMC.
II. Striking Calmare’s Counterclaims
We next turn to the District Court’s ruling striking five of Calmare’s new
counterclaims in its amended answer responding to GEOMC’s second amended
complaint. Because of the variety of district court rulings, both procedural and
substantive, on new counterclaims, we consider both the content of a new
counterclaim in an amended answer responding to an amended complaint and the
procedures for presenting and challenging such a counterclaim.11
11 We have no need to consider Rule 13’s distinction between compulsory and
permissive counterclaims. See Fed. R. Civ. P. 13(a), (b).

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As to content, a new counterclaim, like all pleadings, must conform to the
pleading requirements of Twombly and Iqbal. See 2 Moore’s Federal Practice,
§ 12.34[1][a] (3d ed. 2018); 6 Wright & Miller § 1407 (3d ed. 2018). The closer
question is whether a new counterclaim may respond as broadly as one included
in an answer to an original complaint or whether it must respond only to the new
allegations of an amended complaint. This is an issue that remains unresolved,
like other aspects of asserting amended counterclaims. See Christians of California,
Inc. v. Clive Christian Furniture Ltd., No. 13 CIV. 275 (LTS)(JCF), 2014 WL 982889,
at *2 (S.D.N.Y. Mar. 11, 2014) (“courts in this Circuit have adopted different
approaches”); Southern New England Telephone Co. v. Global NAPS, Inc., No. CIVA
3:04‐CV‐2075 JCH, 2007 WL 521162, at *1 (D. Conn. Feb. 14, 2007) (“a matter that
remains unsettled in the Second Circuit”); Pereira v. Cogan, No. 00 CIV. 619 (RWS),
2002 WL 1822928, at *2 (S.D.N.Y. Aug. 7, 2002); 3 Moore’s Federal Practice §§
13.30[4], 15.17[6] (3d ed. 2018) (“case law . . . all over the map”).12
12 Four approaches to the issue have been identified for new counterclaims
asserted in an amended answer that responds to an amended complaint. A so‐called
“narrow approach” 3 Moore’s Federal Practice § 15.17[6], suggests that a new
counterclaim “had to be tailored specifically to address the amendments in the
complaint,” id. A so‐called “permissive approach,” id. suggests that new counterclaims
may be included in an amended answer “without leave of court, regardless of the nature
of the amended complaint,” id. A so‐called “moderate approach,” id., suggests that new
counterclaims may be filed “without seeking permission if the amended complaint

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We think resolution of this issue depends on how far into the litigation the
new counterclaim is asserted. If an amended answer with a new counterclaim is
presented at an early stage of the litigation, the new counterclaim may normally
be as broad as those filed in response to an original complaint. At a late stage of
the litigation, however, a new counterclaim that raises issues beyond the scope of
the new claims made in the most recent amended complaint will usually cause
escalating prejudice to the counterdefendant and undue expansion of litigation
that the court is charged with managing; for those reasons a new counterclaim
should normally not be permitted if it exceeds the scope of the plaintiff’s new
claims. “As a general rule, the risk of substantial prejudice increases with the
passage of time.” 6 Wright & Miller, § 1488. Although “leave to amend ‘shall be
freely given,’” Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Rule 15(a)), Foman
qualifies that advice by adding “[i]n the absence of . . . undue prejudice,” id.;13 see
changes the theory or scope of the case,” id., but such counterclaims “must be those that
respond to new allegations in the amended complaint,” id. Finally, a so‐called “Bern
approach,” id., suggests that courts considering whether new counterclaims may be filed
should “simply apply normal Rule 15(a) standards, in all their flexibility,” id.; see Bern
Unlimited, Inc. v. Burton Corp., 25 F. Supp. 3d 170, 178‐79 (D. Mass. 2014).
13 Cf. Telecom International America, Ltd. v. AT&T Corp., 280 F.3d 175, 200 (2d Cir.
2001) (stating broadly that a validly asserted counterclaim, presented within the normal
time limits applicable to an amended answer, should not be rejected because of
prejudice). However, the counterclaim at issue in that case, although filed in an amended
answer to an amended complaint, was not a new counterclaim; it had been filed in the

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McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (“A district
court has discretion to deny leave [to amend] for good reason, including . . . undue
prejudice to the opposing party.”). And, as Foman points out, amended pleadings,
which include new counterclaims, can also be rejected because of “undue delay,
bad faith or dilatory motive.” 371 U.S. at 182.
As to procedure for presenting a new counterclaim, most attempts to amend
an answer to include a new counterclaim require permission of the court or
consent of the parties. See Fed. R. Civ. P. 15(a)(2). The only exceptions occur when
a counterclaimant seeks to amend its answer within 21 days after serving its
original answer, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service upon
it of (1) a required responsive pleading, e.g., an answer to a counterclaim, or (2) a
motion under Rule 12(b), (e), and (f), see Fed. R. Civ. P. 15(a)(1)(B). And attempts
to amend an answer to include a new counterclaim after an amended complaint
that requires a response has been filed must be made within 14 days after service
of the amended complaint. See Fed. R. Civ. P. 15(a)(3).14
defendant’s answer to the plaintiff’s original complaint. See Telecom International America,
Ltd. v. AT&T Corp., 187 F.R.D. 492, 494 (S.D.N.Y. 1999).
14 The apparent discrepancy between the 21‐day interval of Rule 15(a)(1)(B) and
the 14‐day interval of Rule 15(a)(3) will not inevitably arise. Rule 15(a)(3) sets a 14‐day
limit only for a “required response to an amended pleading.” Rule 15(a)(1)(B) sets a 21‐
day interval in which a party may amend its pleading “as of course,” i.e, without the

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The proper procedure to challenge a new counterclaim filed in response to
an amended complaint depends on the procedure used by the counterclaimant. If
the counterclaimant files a Rule 15 motion to amend its answer to include a new
counterclaim, the counterdefendant can oppose that motion. But if a
counterclaimant files an amended answer that includes a new counterclaim
without seeking court permission under Rule 15(a)(2), thereby denying the
counterdefendant an opportunity to oppose a counterclaimant’s Rule 15 motion,
the proper motion for the counterdefendant to use depends on what appears on
the face of the pleadings or in the record.
In the analogous situation where a claim or counterclaim is alleged to be
barred by a statute of limitations, the Eleventh Circuit has helpfully explained that
“[w]hile a statute of limitations defense may be raised on a motion to dismiss for
failure to state a claim for which relief can be granted under Fed. R. Civ. P. 12(b)(6),
see Mann v. Adams Realty Co., 556 F.2d 288 (5th Cir. 1977), when the complaint
shows on its face that the limitations period has run, Mooney v. Tallant, 397 F. Supp.
court’s or the opponent’s permission. Thus, the 14‐day interval shortens the 21‐day
interval only where a defendant, responding as required to a plaintiff’s amended
complaint, elects to include in its amended answer a new counterclaim, because that new
counterclaim is a pleading “to which a responsive pleading is required,” Fed. R. Civ. P.
15(a)(1)(B), i.e., the plaintiff/counterdefendant’s answer.

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680 (N.D. Ga. 1975), the defect may be raised by motion for summary judgment
where the alleged failure to comply with the statute of limitations does not appear
on the face of the complaint.” Avco Corp. v. Precision Air Parts, Inc., 676 F.2d 494,
495 (11th Cir. 1982); see Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12
(2d Cir. 2014) (Rule 12(b)(6) motion proper where facts appear on face of pleading);
Chicago Building Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613‐14 (7th Cir.
2014) (same); Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (same).
Similarly, if a new counterclaim raising issues beyond the scope of the most
recent amended complaint is filed so late in the litigation that it will cause
prejudice to the counterdefendant or unduly expand the litigation, the new
counterclaim may be challenged (1) by a Rule 12(b)(6) motion if relevant
undisputed facts appear on the face of the pleadings or in the record, (2) by a Rule
56 motion if relevant undisputed facts can be presented by affidavit, or (3) by an
answer under Rule 8(c) if relevant facts are in dispute. Rule 12(f), which authorizes
a motion to strike an insufficient defense or improper material in a pleading
should not be used to dismiss the counterclaim. See Day v. Moscow, 955 F.2d 807,
811 (2d Cir. 1992); 2 Moore’s Federal Practice § 12.37[3] (3d ed. 2018); 5C Wright
& Miller, § 1380, at n.5 (3d ed. 2018).

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In ruling on a motion to dismiss a new counterclaim, a district court can
either assess the new counterclaim’s legal sufficiency or exercise the discretion the
court would have been entitled to use if the counterclaimant had moved under
Rule 15 to file the new counterclaim.
In the pending case, GEOMC’s use of a Rule 12(f) motion to strike Calmare’s
new counterclaims (as distinguished from striking matter in them) was
procedurally improper. See Day, 955 F.2d at 811. But GEOMC should not be faulted
for abiding by the District Court’s novel ruling that permitted Calmare’s amended
answer, with the new counterclaims, to be filed, subject to GEOMC’s filing a
motion to strike the counterclaims. Although this procedure was improper, the
District Court’s ruling on GEOMC’s motion to strike Calmare’s new counterclaims
was the functional equivalent of a ruling on Calmare’s motion to amend its answer
under Rule 15 to include the new counterclaims in an amended answer to
GEOMC’s second amended complaint. We will therefore consider the dismissal
ruling on its substantive merits.
Because the second amended complaint, filed late in the litigation, added
only a claim for breach of contract, the new counterclaims were properly tested in
relation only to that claim. Calmare’s new counterclaims endeavored to respond

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to matters beyond the scope of that added claim. The first new counterclaim
alleged that GEOMC breached a 2007 license by entering into an agreement with
Radiant Health Management Corp. (“Radiant”), an entity not in the litigation up
to that point. The second and sixth alleged that GEOMC tortiously interfered with
the 2007 License by its interactions with Radiant. The fifth alleged that the
previous allegations concerning Radiant constituted unfair competition in
violation of the Lanham Act and state law. The third alleged that GEOMC should
have known that Calmare’s CEO lacked authority to execute the Security
Agreement and that the Agreement was unenforceable.
The District Court rejected the four counterclaims concerning Radiant on
the ground of prejudice, stating that these counterclaims would “greatly expand
the relatively narrow scope of this case” and “substantially increase[e] the cost and
time required to litigate this matter” by adding “contractual agreements and
numerous third parties not named” in the lawsuit. GEOMC, 2016 WL 6122930, at
*6. The Court rejected the third counterclaim because it “does not include any
factual allegations that would support this claim, nor does it describe a legal basis
for the damages sought.” Id. at *5. Rejecting the counterclaims concerning Radiant
was within the District Court’s discretion because, at a late stage of the case, their

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presentation would have prejudicially expanded the litigation, and the third
counterclaim was properly rejected as factually and legally deficient.
Conclusion
The ruling striking Calmare’s two affirmative defenses and rejecting its five
counterclaims is affirmed. The case is remanded for further proceedings consistent
with a summary order filed this day.

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