SARATOGA HARNESS RACING INC., Plaintiffs,

v.

Peter VENEGLIA, Individually and as Chairman of United Standardbred Horsemen ofNew York; Northeastern Harness Horsemen's Assoc. Inc.; Joseph A. Faraldo; Standardbred Owners Assoc. of New York; Leonard D. Powell; Standardbred Breeders and Owners Assoc. of New Jersey, Inc.; Dominic Frinzi; Harness Horsemen International, Defendants.

No. 94-CV-1400.

United States District Court,

N.D. New York.

March 18, 1997.

MEMORANDUM

MCAVOY, District Judge.

DECISION & ORDER

Plaintiff in this antitrust lawsuit moves for an order, pursuant to Fed. R.Civ. P. 12(c), 12(f), and 12(h)(2), striking each and all of the affirmative defenses pleaded in the defendants' answers.

I. BACKGROUND

A. Facts:

This lawsuit stems from failed contract negotiations between plaintiff Saratoga Harness Racing, Inc., which operates a harness race track at Saratoga, New York, and the horse owners who race at Saratoga. Defendant Northeastern Harness Horsemen's Association, Inc. ("NHHA") is the trade organization of horsemen with which Saratoga previously had a contract relating to the terms and conditions of racing at Saratoga. That contract expired on November 30, 1993. Defendant Powell is a vice-president of NHHA. Defendants Faraldo and Veneglia are styled as members, agents and negotiators for defendant NHHA. Defendant Faraldo is also president of defendant Standardbred Owners Association of New York, Inc. ("SBOA-NY"), which represents horsemen at Yonkers racetrack. Defendant Veneglia is also an officer and member of defendant United Standardbred Horsemen of New York ("USH") an unincorporated group of horsemen's associations. [FN1] Defendant Frinzi is the president of defendant Harness Horsemen International ("HHI"), an association that includes various horsemen's associations, including NHHA and SOA-NY. Negotiations for a new contract between plaintiff and NHHA took place during the fall of 1993 and the Spring of 1994: those negotiations ultimately failed.

FN1. Defendants Veneglia, USH, NHHA, SBOA-NY and Powell are hereinafter referred to as "the New York defendants."

Plaintiff essentially states two separate antitrust claims against these defendants [FN2] based on their conduct during and since the time that negotiations broke down between plaintiff and the NHHA: 1) that defendant NHHA, through defendants Faraldo, Powell, and Veneglia both individually and through defendant USH, and with the assistance of Frinzi and HHI, have organized a boycott of Saratoga by their membership and other horsemen, in violation of § 1 of the Sherman Act; and, 2) that these defendants and local horsemen's associations at other tracks have engaged in an illegal "tying" operation, whereby these local associations, in combination with other defendants, threatened to withhold their consent to simulcasting of those other tracks' races if those other tracks simulcasted races to Saratoga. [FN3]

FN2. By stipulation and order dated July 22, 1996, defendant Standardbred Breeders and Owners Horsemen Association of New Jersey, Inc., ("SBOA-NJ"), was dismissed from the action.

FN3. Plaintiff also asserts violations of New York State antitrust law, N.Y. G.B.L. § 340, (the "Donnelly Act"), and a common law claim for tortious interference with contract.

B. Procedural History

Plaintiff commenced this lawsuit on October 28, 1994 against all defendants except Frinzi and HHI. On December 15, 1994, plaintiff moved for a preliminary injunction. SBOA-NJ moved to dismiss for lack of personal jurisdiction on January 3, 1995; the remaining defendants moved to dismiss for lack of subject-matter jurisdiction on January 4, 1995.

The Court heard oral argument on all motions on January 27, 1995. In a bench decision, the Court denied all motions. (Transcript of Proceedings of January 27, 1995 ["Tr."] at 19). SBOA-NJ moved for reconsideration on May 22, 1995, which was denied by Memorandum, Decision and Order dated August 2, 1995.

On January 2, 1996, plaintiff moved to amend the Complaint to add Frinzi and HHI as defendants; the motion was granted. All defendants answered the Amended Complaint, asserting various affirmative defenses.

II. DISCUSSION.

A. Plaintiff's Present Motion

Plaintiff filed the present motion on October 10, 1996. Plaintiff moves, ostensibly pursuant to Fed.R.Civ.P. 12(c), 12(f), and/or 12(h)(2), to strike all affirmative defenses pleaded in the defendants' answers. Since the propriety and posture of the motion are as much in dispute as is its substance, the procedural aspects merit some discussion.

We turn first to the rules themselves. Fed.R.Civ.P. 12 provides, in pertinent part:

(c) Motion for Judgment on the Pleadings.

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.

(h) Waiver or Preservation of Certain Defenses

[A]n objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

Fed.R.Civ.P. 12. A party is entitled to judgment on the pleadings pursuant to Rule 12(c) if it has established " 'that no material issue of fact remains to be resolved and that [it] is entitled to judgment as a matter of law." Juster Associates v. City of Rutland, Vermont, 901 F.2d 266, 269 (2d Cir.1990) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368, at 690 (1969)). Where material fact issues remain, however, judgment on the pleadings is inappropriate. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977); Shah v. New York State Dept. of Civil Service, 1996 WL 694340, at *1 (S.D.N.Y.1996).

Plaintiff's motion is curious in at least two respects. First, plaintiff asserts that "[t]he present motion does not seek summary judgment," (Roemer Aff. ¶ 12), and yet in support of its motion, plaintiff makes reference to a number of "matters outside the pleadings," (see, e.g., Pl. Mem. of Law at 5, 7 n. 7) and further goes so far as to submit copies of defendants' answers to plaintiff's interrogatories. (Roemer Reply Aff. Ex. B). These materials, if not excluded by the Court, would in fact convert the motion to one for summary judgment. See Fed.R.Civ.P. 12(c) ("If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment ..."). If plaintiff indeed does not seek summary judgment, the Court is hard pressed to discern plaintiff's rationale in submitting such materials, although a disregard for Rule 12's prerequisites comes to mind. [FN4]

FN4. Plaintiff further asserts that "the limited factual record described in ¶ 11 of plaintiff's moving affirmation may be referenced on this motion pursuant to the terms of Rule 12(c) ..." (Roemer Reply Aff. ¶ 4). Absent converting the motion to one for summary judgment, however, plaintiff offers no support for consideration of this "abbreviated evidentiary record." (Roemer Aff. ¶ 11).

Second, plaintiff asserts that a number of "facts" are undisputed, e.g., that the boycott occurred, and that defendants supported it (See Roemer Aff. ¶ 21), despite the fact that such assertions explicitly are denied to a large extent in defendants' answers. (See, e.g., N.Y. Def. Answer ¶¶ 20-22; Frinzi/HHI Answer ¶¶ 19-23). [FN5]

FN5. Defendants' inclusion of denials and affirmative defenses in their answers themselves militate against the propriety of judgment on the pleadings.

A material issue of fact that will prevent a motion under Rule 12(c) from being successful may be framed by an express conflict on a particular point between the parties' respective pleadings. It also may result from defendant pleading new matter and affirmative defenses in his answer.

5A C. Wright & A. Miller, Federal Practice and Procedure § 1368, at 529 (1990).

For the reasons stated above, and despite plaintiff's reliance on Rule 12(c), the Court will treat plaintiff's motion as one to strike defendants' affirmative defenses pursuant to Rule 12(f). See. e.g, Bazazi v. Michaud, 856 F.Supp. 33, 34 (D.N.H.1994) (construing plaintiff's motion for judgment on the pleadings as motion to strike affirmative defenses pursuant to Rule 12(f)); Ciminelli v. Cablevision, 583 F.Supp. 158, 161 (E.D.N.Y.1984) (treating plaintiff's motion for summary judgment dismissing affirmative defenses, which relied on federal rule for judgment on the pleadings, as motion to strike insufficient defense pursuant to Rule 12(f)).

Insofar as plaintiff's motion is brought pursuant to Rule 12(f) however, defendants object that it is untimely. Rule 12(f) provides that a motion to strike portions of a pleading to which no responsive pleading is required must be brought within twenty days after service of the pleading. Fed.R.Civ.P. 12(f). The rule also provides, however, that a court may order an insufficient defense stricken from a pleading at any time, on its own initiative. Id. "Numerous courts have held that the court's power to strike a defense on its 'own initiative at any time' allows it to consider untimely motions to strike." Dixie Yarns. Inc. v. Forman, 1993 WL 227661 at *3 (S.D.N.Y.1993) (citing National Union Fire Ins. v. Alexander, 728 F.Supp. 192, 203 (S.D.N.Y.1989); 2A J. Moore, Moore's Federal Practice, ¶ 12.21 at 2420 (2d ed.1983)); see also Ciminelli, 583 F.Supp. at 161; Uniroyal, Inc. v. Heller, 65 F.R.D. 83, 86 (S.D.N.Y.1974). Thus, the Court will consider plaintiff's motion to strike.

B. Standard for a Motion Pursuant to Fed.R.Civ.P. 12(f).

" 'Generally, well-pleaded facts are accepted as true for purposes of a motion to strike, and matters outside the pleadings will not be considered in support of the motion." ' United States v. $79,000 in Account Number 2168050/6749900 at the Bank of New York, 1996 WL 648934, at *2 (S.D.N.Y.1996) (quoting 2A James W. Moore, Moore's Federal Practice, ¶ 12.21 [3], at 12-214-15 (2d ed.1996)). "A motion to strike an affirmative defense under Rule 12(f) ... for legal insufficiency is not favored and will not be 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.' " William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir.1984) (quoting Durham Industries. Inc. v. North River Insurance Co., 482 F.Supp. 910, 913 (S.D.N.Y.1979)), vacated on other grounds, 478 U.S. 1015 (1986).

In order to succeed on a motion to strike affirmative defenses, a plaintiff must establish three elements: (1) that there is no question of fact which would allow the defense to succeed; (2) that there is no question of law which would allow the defense to succeed; and (3) that the plaintiff would suffer prejudice from inclusion of the defense. SEC v. Thrasher, 1995 WL 456402, at *5 (S.D.N.Y.1995); SEC v. Toomey, 866 F.Supp. 719, 722 (S.D.N.Y.1992); see also Salcer, 744 F.2d at 939; Morse/Diesel v. Fidelity & Deposit Co. of Md., 763 F.Supp. 28, 34 (S.D.N.Y.1991).

It is with this standard in mind that the Court turns to plaintiff's motion.

C. The Affirmative Defenses

The defendants plead the following affirmative defenses: (1) failure to state a claim upon which relief may be granted; (2) implied antitrust immunity; (3) laches; (4) lack of standing; (5) voluntary consent to collective negotiations; (6) estoppel; (7) waiver; (8) implied repeal of antitrust laws; (9) no injury to business or property; (10) no antitrust injury; (11) lack of personal jurisdiction; (12) insufficiency of process; (13) that any injury was caused by parties over whom defendants have no control. Defenses 11, 12 and 13 are pleaded by Frinzi and HHI only.

The Court will address these defenses as addressed by the parties.

(a) Implied Antitrust Immunity/Implied Repeal of Antitrust Laws

Plaintiff first argues that the defenses based upon the Interstate Horseracing Act of 1978, 15 U.S.C. § 3001 et seq., ("IHA") should be stricken because Congress did not intend the Act to effect an implied antitrust repeal or immunity.

Much of the parties' arguments in this regard center on the Court's previous bench ruling on defendants's motion to dismiss for lack of subject matter jurisdiction and plaintiff's motion for a preliminary injunction. Thus, as an initial matter, we discuss what the Court did and did not hold.

First, in denying defendant's motion to dismiss, the Court did not rule on whether the IHA effects an implied repeal of antitrust laws with respect to the challenged conduct. Rather, the Court ruled that, assuming ... that the combination of the New York's regulatory scheme and the Interstate Horseracing Act gives rise to any application of the doctrine [of implied repeal], review of the relevant caselaw reveals no such preclusive operation of the doctrine so that its invocation would completely divest this Court of subject matter jurisdiction over plaintiff's complaint. Rather, the proper approach in such a case is an analysis which reconciles the operation of both statutory schemes with one another, rather than holding one completely ousted.

(Tr. at 3-4). Thus, the Court's ruling was limited to whether the doctrine of implied repeal, if it applied at all, would serve to deprive the Court of subject matter jurisdiction. In ruling that it would not, the Court addressed, at least in part, the sufficiency of defendants' affirmative defense that This Court lacks jurisdiction over the subject matter of this action, in whole or in part, by virtue of implied repeal of the antitrust laws with respect to the conduct challenged herein. (N.Y. Def. Ans. ¶ 66; HHI Def. Ans. ¶ 68). "However, even if the Court has previously decided [this] issue[ ], the doctrine of the law of the case does not prevent the Court from reconsidering [it]." Oppel v. Empire Mut. Ins. Co., 92 F.R.D. 494, 496 (S.D.N.Y.1981). The law of the case doctrine provides that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Liona Corp. v. PCH Assocs., 949 F.2d 585, 592 (2d Cir.1991) (quoting Christianson v. Colt Indus. operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). Application of the doctrine is discretionary, however, see Virgin Atl. Airways v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992), and it "does not constitute a limitation on the Court's power and need not be applied where no prejudice results from its omission." Oppel, 92 F.R.D. at 496; see Slotkin v. Citizens Cas. Co. of N.Y., 614 F.2d 301, 312 (2d Cir.1979).

Furthermore, in denying defendants' motion to dismiss, the Court clearly left open the question of the precise interaction between the IHA and antitrust laws. (See Tr. at pp. 1-5). Similarly, in denying plaintiff's motion for a preliminary injunction, the Court once again expressed the need for caution at such a preliminary stage. As then stated, the difficulty arises because "what boycott participants do is not necessarily different from what they would do in the absence of an impermissible boycott." Alabama Sportservice Inc. v. National Horsemen's Ass'n, 767 F.Supp. 1573, 1579 (M.D.Fla.1991). Of course, in denying the plaintiff's motion for injunctive relief, the Court in no way foreclosed an examination of the merits of either plaintiff's or defendants' positions. See. e.g., DiLaura v. Power Authority of the State of New York, 982 F.2d 73, 76 (2d Cir.1992) ("[t]he decision of both the trial and appellate court on whether to grant or deny a temporary injunction does not preclude the parties in any way from litigating the merits of the case.") (quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2962, at 630-31 (1973)). The Court thus turns to defendants' affirmative defenses of implied repeal and implied antitrust immunity.

Repeals by implication, or implied antitrust immunity are not casually inferred. Viacom Intern. Inc. v. Time Inc., 785 F.Supp. 371, 383 (S.D.N.Y.1992). "Only where there is a 'plain repugnancy between the antitrust and regulatory provisions' will repeal be implied." Gordon v. New York State Stock Exchange, Inc., 422 U.S. 659, 682, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975) (quoting United States v. Philadelphia National Bank, 374 U.S. 321, 351, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). " 'The touchstone of [the implied immunity) analysis is Congressional intent ... since the principle is founded on the notion that, in some circumstances, a Congressional delegation of regulatory authority carries with it the implication that the antitrust laws shall not apply to the conduct thus regulated.' " Viacom, 382 F.Supp. at 382 (quoting Northeastern Telephone Co. v. American Telephone and Telegraph Co., 651 F.2d 76, 82 (2d Cir.1981)).

The legislative history of the IHA gives some indication of its intended impact on antitrust law:

This legislation in no way modifies or affects the scope or application of the antitrust laws of the United States, nor does it confer upon any person or persons the right to enter into any agreement in restraint of trade which would be prohibited under the antitrust laws. [FN6]

FN6. There may be less to this passage than meets the eye. The quoted passage is from a House Report on H.R. 14089. See H.R.Rep. No. 1733, 95 Cong., 2d Sess., at 4, reprinted in 1978 U.S.S.C.A.N. at 4132. However, the bill that eventually became the IHA was S. 1185; neither the Senate Judiciary Committee Report nor the Senate Commerce, Science and Transportation Committee Report on S. 1185 make any mention of antitrust concerns. See 1978 U.S.S.C.A.N. at 4144.

H.R.Rep. No. 1733, 95 Cong., 2d Sess., at 4 (1978), reprinted in 1978 U.S.S.C.A.N. 4132; see also Hialeah, Inc. v. FHBPA, 899 F.Supp. 616, 621 (S.D.Fla.1995) ("the Court recognizes that the IHA provides no immunity to any party from federal antitrust law, nor does the legislative history indicate that this was Congress' intent"). Nonetheless, as the Court previously acknowledged, the "statutory framework bespeaks a certain amount of collective activity by horsemen through horsemen's associations." (Tr. at 12). Furthermore, Congress must have recognized that withholding consent under the IHA would inevitably result in diminished competition; the question under the Sherman Act, however, is "whether it is diminished sufficiently to be deemed illegal." Alabama Sportservice, 767 F.Supp. at 1580. Similarly, while the literal language of § 1 of the Sherman Act sweeps broadly, [FN7] it is now well-settled that antitrust law prohibits only those contracts or combinations that are "unreasonably restrictive of competitive conditions." Standard Oil Co. v. United States, 221 U.S. 1, 58, 31 S.Ct. 502, 55 L.Ed. 619 (1911).

FN7. See, e.g., Nat. Society of Professional Engineers v. U.S., 435 U.S. 679, 688, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978) ("read literally, § 1 would outlaw the entire body of private contract law"); United States v. Topco Assoc., 405 U.S. 596, 606, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972) ( "Were § 1 to be read in the narrowest possible way, any commercial contract could be deemed to violate it.").

It is neither factually nor legally clear at this point whether the IHA envisions the horsemen's veto being so wielded; consent is to be "withdrawn or varied only within the regular contractual process of negotiating an agreement as to terms and conditions between the horsemen's group and the host racing association." Alabama Sportservice, 767 F.Supp. at 1579 (emphasis added). In the proper context then, "the freedom to negotiate contemplated by the IHA does not necessarily result in antitrust injury ... when consent is withheld." Id.

Unsurprisingly, the Court is in no better position now to rule on the proper reconciliation of the two statutes than it was on the prior motion; questions of fact and law pervade the analysis to such an extent that the Court is unprepared to rule at this stage whether the IHA provides a defense to conduct forbidden by the Sherman Act. The pleadings and memoranda of the parties are scarcely more developed than on the prior motion. Moreover, a motion to strike affirmative defenses "was never intended to furnish an opportunity for the determination of disputed and substantial questions of law." William Z. Salcer, etc., 744 F.2d at 939 (quoting Carter-Wallace, Inc. v. Riverton Laboratories Inc., 47 F.R.D. 366, 367-68 (S.D.N.Y.1969)). Thus, plaintiff's motion to strike these affirmative defenses is denied.

(b) The Equitable Defenses

Defendants also plead the affirmative defenses of waiver, estoppel, laches, and that plaintiff's action is barred by its voluntary consent to collective negotiations with horsemen.

As to the voluntary consent defense, defendants offer no factual or legal support for the proposition that such consent and participation in collective negotiations, in and of themselves, would bar any of plaintiff's causes of action. Furthermore, plaintiff may in fact suffer sufficient prejudice from the increased time and money spent on discovery regarding an affirmative defense for which defendants provide no support, particularly since plaintiff does not contest its history of negotiation with the horsemen. See PHH FleetAmerica Corp. v. Crawford & Co., Inc., 1995 WL 424986 at *4 (S.D.N.Y.1995). Thus, plaintiff's motion is granted as to this defense.

The remaining equitable defenses will be stricken without prejudice. First, plaintiff's citations to New York caselaw regarding the strict pleading requirements for these defenses are inapplicable in this federal action. "Affirmative defenses are ... subject to the general pleading requirements of Rules 8(a), 8(e) and 9(b), generally requiring only a short and plain statement of the facts but demanding particularity as to the circumstances constituting fraud and mistake." Instituto Nacional De Comercializacion Agricola (Indeca) v. Continental Illinois Nat. Bank & Trust Co., 576 F.Supp. 985, 988 (N.D.Ill.1983); see also Fed.R.Civ.P. 8(b) ("A party shall state in short and plain terms the party's defenses to each claim asserted ..."). Defendants' answers merely state, in conclusory terms, that plaintiff's claims are barred by the doctrines of waiver, estoppel and laches; mere recitation of the legal buzzwords, however, will not suffice. See, e.g., Paine Webber, Inc. v. International Mobile Machines Corp., 1992 WL 75068 at *2 (S.D.N.Y.1992) ("while an answer need not include a detailed statement of the applicable defenses, a defendant must do more than make conclusory allegations") (citing Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294-95 (7th Cir.1989)); Telectronics Proprietary. Ltd. v. Medtronics. Inc., 687 F.Supp. 832, 841 (S.D.N.Y.1988) ("the word 'estoppel' without more is not a sufficient statement of a defense"). Defendants are granted leave to replead these three defenses within twenty days of the date of this Order.

(c) The Remaining Defenses Failure to State a Claim/General Denials

The language of Fed.R.Civ.P. 12(b)(6) can be used on a motion to dismiss or as an affirmative defense, at the pleader's option. SEC v. Toomey, 866 F.Supp. 719, 723 (S.D.N.Y.1992) (citing 5A C. Wright & A. Miller, Federal Practice & Procedure § 1349, at 190 (1990)). "Furthermore, it is well settled that the failure-to-state-a-claim defense is a perfectly appropriate affirmative defense to include in the answer." Toomey, 866 F.Supp. at 723. While the defense may be redundant in that it is akin to a general denial, "there is no prejudicial harm to plaintiff and the defense need not be stricken." Oppel, 92 F.R.D. at 498; see Simon v. Manufacturers Hanover Trust Co., 849 F.Supp. 880, 882 (S.D.N.Y.1994).

Similarly, defendants' "general denials" will not be stricken. These defenses are (1) that plaintiff has suffered no injury or damage; (2) that plaintiff has suffered no antitrust injury; (3) that defendants had no control over the injury-causing parties.; and (3) that plaintiff lacks standing. Although asserted as affirmative defenses, these are essentially general denials; nonetheless, plaintiff will suffer no prejudice from allowing them to stand. Oliner v. McBride's Indus., Inc., 106 F.R.D. 14, 19 (S.D.N.Y.1985). Thus, plaintiff's motion is denied as to these defenses.

Lack of Personal Jurisdiction/Insufficient Service of Process

The HHI defendants plead, as affirmative defenses, that this Court lacks personal jurisdiction over them, and that service of process on them was insufficient. In support of these defenses, defendants argue that because they deny plaintiff's allegations regarding the HHI defendants' contacts with New York in their Answer, the material facts regarding personal jurisdiction are in dispute.

Fed.R.Civ.P. 12(h)(1) provides that the defense of lack of personal jurisdiction is waived if neither asserted by a Rule 12 motion nor included in the answer. The HHI defendants chose to do the latter. "Even if a litigant preserves this defense by including it in his answer, [however,] undue delay in challenging personal jurisdiction by a motion to dismiss may ... constitute waiver." Krank v. Express Funding Corp., 133 F.R.D. 14, 16 (S.D.N.Y.1990); see Burton v. Northern Dutchess Hospital, 106 F.R.D. 477, 481 (S.D.N.Y.1985). Judge Edelstein in Burton articulated well a defendant's obligations:

Defendants have literally complied with Rule 12(h)(1) by asserting the defense of lack of jurisdiction in their answers. These responsive pleadings, however, do not preserve the defense in perpetuity. Defendants are required at some point to raise the issue by motion for the Court's determination. After preserving the jurisdictional defense in their answers, defendants should have sought discovery immediately to ascertain whether service was proper. If they discovered that service was not proper, defendants should have moved at the earliest possible opportunity to dismiss the complaint.

Burton, 106 F.R.D. at 481.

In the present case, plaintiff filed its Amended Complaint on January 10, 1996. The HHI defendants answered on February 26, 1996 and filed an acknowledgment of service on March 8, 1996. Thus, the HHI defendants have had over one full year to contest either the sufficiency of process or this Court's personal jurisdiction over them. During that period, the HHI defendants have participated in status conferences and engaged in discovery. Furthermore, these defendants offer no arguments on this motion in support of their contentions regarding lack of personal jurisdiction or insufficient process. These circumstances militate in favor of a finding of waiver. See Datskow v. Teledyne, Inc., Continental Products Div., 899 F.2d 1298, 1303 (2d Cir.1990); Caribe Carriers, Ltd. v. C.E. Heath & Co., 784 F.Supp. 1119, 1125 (S.D.N.Y.1992); Krank, 133 F.R.D. at 17; Benveniste v. Eiseman, 119 F.R.D. 628, 629 (S.D.N.Y.1988). Therefore, the HHI defendants having waived these defenses, the Court grants plaintiff's motion to strike in this respect.

Conclusion

For all of the foregoing reasons, plaintiff's motion to strike the affirmative defenses is granted in part and denied in part. The motion is granted, without prejudice, as to the defenses of estoppel, waiver, and laches, as to all defendants. Defendants are granted leave to amend the Answers as to these defenses within twenty days of the date of this Order. The motion is further granted, with prejudice, as to the HHI defendants' affirmative defenses of lack of personal jurisdiction and insufficient service of process. The motion is also granted, with prejudice, as to the affirmative defense of voluntary consent to collective negotiations, as to all defendants. The motion is denied as to all other defenses.

IT IS SO ORDERED.

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