405 Sullivan Ave. Indus. v. Kuhns Family Props.

Docket Number3:23-CV-240 (SVN)
Decision Date12 July 2023
CourtU.S. District Court — District of Connecticut



Plaintiff and counterclaim Defendant 405 Sullivan Avenue Industrial LLC (405 Sullivan) initiated the present breach of contract action against Defendant and counterclaim Plaintiff Kuhns Family Properties, LLC (Kuhns), relating to 405 Sullivan's purchase of a property from Kuhns. In response, Kuhns filed an answer raising various affirmative defenses and a counterclaim for attorney fees under the parties' contract. 405 Sullivan then filed the present motion pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f), seeking to dismiss Kuhns' counterclaim and strike two of Kuhns' affirmative defenses. For the following reasons, the Court GRANTS IN PART and DENIES IN PART 405 Sullivan's motion.


The pleadings contain the following factual background. Early in 2022, Kuhns entered into a contract with PADS Property Holdings LLC (“PADS”), 405 Sullivan's alleged predecessor in interest, regarding the purchase and sale of a commercial real property located at 405 Sullivan Avenue in South Windsor, Connecticut. Compl., ECF No. 1 ¶¶ 8, 10.[1] Under that contract, Kuhns agreed to sell the property to PADS for $1.5 million. Id. ¶¶ 8-9. Kuhns admits that it entered into a contract to sell the property to PADS. Am. Ans., ECF No. 12, ¶ 8; Countercl., ECF No. 12, ¶ 3. But Kuhns denies that the contract attached to 405 Sullivan's complaint is the true and accurate contract, and Kuhns attaches a contract to its answer that it contends is the true and accurate contract. Am. Ans. ¶¶ 8, 10; Countercl. ¶ 3.[2]

405 Sullivan alleges that Kuhns made certain representations and warranties in the contract about the condition of the property and its compliance with applicable laws, rules, and regulations, all of which appear to be contained in the version of the contract supplied by Kuhns as well. Compl. ¶¶ 13-15; Ex. A to Am. Ans., ECF No. 12-1, at 6, 9. In addition, relevant here, both parties' versions of the contract contained identical indemnity clauses, under which Kuhns agreed to indemnify PADS from any losses arising from Kuhns's breach of any of its representations, warranties, or obligations set forth in the contract. Ex. A to Compl., ECF No. 1-1, at 11; Ex. A to Am. Ans. at 10. Finally, both versions of the contract also contained identical survival clauses, which provided that all of Kuhns's representations and warranties as set forth in the contract would survive the closing on the purchase and sale of the property for a period of six months. Ex. A to Compl. at 11; Ex. A to Am. Ans. At 10.

On July 7, 2022, Kuhns conveyed its interest in the property to 405 Sullivan through a warranty deed. Compl. ¶ 19; Am. Ans. ¶ 19. After the closing, 405 Sullivan identified several allegedly defective conditions at the property, particularly concerning the roof, which required costly repair and replacement. Compl. ¶¶ 21-26. In addition, the property allegedly failed to comply with many sections of the Town of Windsor's fire code during a post-closing inspection, and presented other ancillary issues. Id. ¶¶ 28-31. 405 Sullivan alleges that Kuhns either knew or should have known of these defective conditions at the time of the closing, but failed to disclose them to 405 Sullivan. Id. ¶¶ 27, 29, 31. 405 Sullivan alleges that, on December 29, 2022, it notified Kuhns that Kuhns was in default under the contract and demanded that Kuhns indemnify 405 Sullivan for all costs, including attorneys' fees, incurred by 405 Sullivan as a result of the default. Id. ¶ 35.

On February 23, 2023, 405 Sullivan initiated the present action against Kuhns, seeking indemnification under the contract due to Kuhns' alleged breaches of that contract. Id. ¶¶ 16-17, 35. Specifically, 405 Sullivan raises the following claims: breach of contract (Count One), id. ¶ 38; breach of the implied covenant of good faith and fair dealing (Count Two), id. ¶ 42; negligent misrepresentation (Count Three), id. ¶ 45; fraudulent misrepresentation (Count Four), id. ¶ 51; and violation of Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-100a et seq. (Count Five), id. ¶ 58. Thereafter, Kuhns filed its operative answer to the complaint, raising several affirmative defenses and a counterclaim for attorneys' fees under the contract. See generally Am. Ans. 405 Sullivan then filed the present motion, seeking to strike two of Kuhns' affirmative defenses and to dismiss Kuhns's counterclaim.


405 Sullivan seeks to strike Kuhns' fourth and fifth affirmative defenses. For the following reasons, the Court grants 405 Sullivan's motion with respect to Kuhns' fourth affirmative defense, but the Court denies 405 Sullivan's motion with respect to Kuhns' fifth affirmative defense.

A. Legal Standard

Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). The general purpose of motions to strike is to “clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.” Lokai Holdings LLC v. Twin Tiger USA LLC, 306 F.Supp.3d 629, 645 (S.D.N.Y. 2018) (citations and internal quotation marks omitted). Because striking a pleading is a “drastic remedy,” however, motions to strike are generally disfavored and will not be granted unless the moving party clearly shows that “the challenged matter has no bearing on the subject matter of the litigation.” Lamoureux v. AnazaoHealth Corp., 250 F.R.D. 100, 102-03 (D. Conn. 2008); see Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986)).

In order to succeed on a motion to strike an affirmative defense, the movant carries the burden of establishing “that (1) there is no question of fact that might allow the defense to succeed; (2) there is no substantial question of law that might allow the defense to succeed; and (3) they would be prejudiced by the inclusion of the defense.” Walters v. Performant Recovery, Inc., 124 F.Supp.3d 75, 78 (D. Conn. 2015); see also GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 98 (2d Cir. 2019) (discussing these factors). The first two elements examine the factual and legal sufficiency of the asserted defense under the familiar plausibility standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). GEOMC Co., 918 F.3d at 98; see also Coach, Inc. v. Kmart Corps., 756 F.Supp.2d 421, 425 (S.D.N.Y. 2010). Because “applying the plausibility standard to any pleading is a ‘context-specific' task,” however, the nature of the affirmative defense is “relevant to the degree of rigor appropriate for testing the pleading of an affirmative defense.” GEOMC Co., 918 F.3d at 98 (quoting Iqbal, 556 U.S. at 679). Importantly, substantial questions of law requiring significant interpretation and analysis are generally not properly resolved on motions to strike. See, e.g., Salcer, 744 F.2d at 939; F.D.I.C. v. Pelletreau & Pelletreau, 965 F.Supp. 381, 390 (E.D.N.Y. 1997); Green v. Schmelzle, 210 F.Supp.3d 454, 465 (W.D.N.Y. 2016). The final element considered on a motion to strike, regarding the prejudice associated with the affirmative defense, often depends on whether the defense was timely presented. See GEOMC Co., 918 F.3d at 99; Walters, 124 F.Supp.3d at 79. Ultimately, motions to strike are left to “the district court's sound discretion.” Fed. Deposit Ins. Co. v. Raffa, 935 F.Supp. 119, 123 (D. Conn. 1995).

B. Fourth Affirmative Defense

First, the Court GRANTS the motion to strike Kuhns' fourth affirmative defense, which provides that 405 Sullivan's complaint fails to state a plausible CUTPA claim because 405 Sullivan has not alleged “that it mailed a copy of the Complaint to the Attorney General and Commissioner of Consumer Protection as mandated by Conn. Gen. Stat. § 42-110g(c).” Am. Ans. at 7. In moving to strike this defense, 405 Sullivan contends that Connecticut courts have not required a plaintiff to allege that the complaint was mailed to the Attorney General and Commissioner of Consumer Protection in order to plausibly state a CUTPA claim and that, in any event, it did in fact mail a copy of its complaint to those state officials. ECF No. 17-1 at 3. In response, Kuhns acknowledges that its fourth affirmative defense has been rendered moot because 405 Sullivan mailed a copy of the complaint to those state officials. The Court renders no opinion on whether such mailing was required or whether 405 Sullivan should have pleaded that this requirement was satisfied. Nevertheless, the Court GRANTS 405 Sullivan's motion to strike Kuhns' fourth affirmative defense, due to Kuhns' representation that the fourth affirmative defense is now moot.

C. Fifth Affirmative Defense

Kuhns' fifth affirmative defense asserts that 405 Sullivan's claims are barred by the contractual limitation period set forth in the contract's survival and indemnity clauses. Am. Ans. at 7. The Court DENIES the motion to strike this defense because there are questions of both law and fact that may allow the defense to succeed, and because 405 Sullivan suffers no prejudice from Kuhns' inclusion of the defense.

1. Questions of Law and Fact

To begin, Kuhns' fifth affirmative defense presents interrelated questions of law and fact regarding contract interpretation that may allow the defense to succeed. Kuhns argues that the...

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