Answering Affirmative Or Negative Defenses

This post discusses how to respond to ‘Affirmative’ and ‘Negative’ Defenses that appear in the Answer to a Complaint or Counterclaim.

Questions answered in this article:

What Are Affirmative And Negative Defenses?
Do I Have To Respond To The Defenses?
Is There A Time Limit To Respond To The Defenses?
How Do I Respond To Affirmative And Negative Defenses?

Notice
I am not an attorney. This information is based on my personal research, observations and opinions. Laws vary from state to state. You are responsible for verifying the accuracy of any information you take from this site – and are liable for what you do with it.

What Are Affirmative And Negative Defenses?

Brief Definitions…

Links to list… with case law… examine them…then consider how the defense was used in your case.

Do I Have To Respond To Affirmative And Negative Defenses?

Optional

Is There A Time Limit To Respond To The Defenses?

CASE LAW: (from powertech)

I. Timeliness of PTI’s motion to strikeTessera argues that PTI’s motion to strike is untimely, because the motion was filed twenty-four days after Tessera served its answer through electronic filing.Federal Rule of Civil Procedure 12(f) states that a party may make a motion to strike a pleading for which a response is not allowed “within 21 days after being served with the pleading.” Federal Rule of Civil Procedure 6(d) provides, “When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).”Here, Tessera served its answer and affirmative defenses by electronic means pursuant to Rule 5(b)(2)(E). The Court notes that, while Rule 6(d) was created to allow additional time for the mailing of documents and is anachronistic in the context of e-filing, it technically still applies here. Accordingly, PTI was allowed three additional days beyond the twenty-one days provided for in Rule 12(f) to make its motion to strike. See Kohler v. Islands Restaurants, LP, 2012 WL 524086, at *3 (S.D. Cal.) (allowing twenty-four days for a motion to strike affirmative defenses where the answer was served electronically). Thus, PTI’s motion was timely.

What Are Affirmative And Negative Defenses?

How Do I Respond To Affirmative And Negative Defenses?

Motion to Strike… explanation

Begin with the Standard by which the court decides whether or not to strike the defense…

Most common reason given in a motion to strike defenses is failure to

STANDARD OF REVIEW

A court “may order stricken from any pleading . . .
any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). Motions to
strike are generally regarded with disfavor, but are
proper when a defense is insufficient as a matter
of law. Kaiser Aluminum Chemical Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1057
(5th Cir. 1982). “The key to determining the
sufficiency of pleading an affirmative defense is
whether it gives plaintiff fair notice of the
defense.” Wyshak v. City Nat. Bank, 607 F.2d 824,
827 (9th Cir. 1979).

A defense must ‘adequately‘ plead the factual basis according to the standards set forth in the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009)., and Rule 8 requires that, when “responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it.” Federal Rule of Civil Procedure 8(b). Rule 12(f) provides that, on its own or on a motion from a party, a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Federal Rule of Civil Procedure 12(f). “The purposes of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues.” Barnes v. AT&T Pension Benefit Plan–Nonbargained Program, 718 F. Supp. 2d 1167 (N.D. Cal. 2010)(citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)). If a defense is struck, “[i]n the absence of prejudice to the opposing party, leave to amend should be freely given.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979).CRITERIA:”The Ninth Circuit has long held that ‘[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.'” Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425, at *6 (N.D. Cal.) (quoting Wyshak, 607 F.2d at 827).

Most common reason give in a motion to strike:

most common of which is failure to provide
adequate notice of the factual and legal bases for
the defense.

Affirmative defenses that include only conclusory allegations, without providing any explanation specific to the claim they’re being applied to, or further information about the basis for raising that defense are insufficient because they do not provide fair notice. See Yates v. Perko’s Cafe, 2011 WL 2580640, at *3 (N.D. Cal.) (“An insufficiently pled defense fails to comply with Rule 8 pleading requirements by not providing ‘plaintiff fair notice of the nature of the defense’ and the grounds upon which it rests.”) (citing Wyshak, 607 F.2d at 827).

The Court’s central task in deciding whether proper notice was provided
is to determine whether the affirmative defenses
as stated provide sufficient notice of their bases.
Certain matters must be pled with particularity,
including lack of capacity to sue. Fed.R.Civ.P. 9(a)

….

Other objections to defenses:

The sufficiency of pleading other affirmative
defenses depends on the nature of the affirmative
*3 defense. Merely naming the defense may be
sufficient for some defenses, whereas others may
require a brief explanation of why the defense
might apply. See, e.g., Qarbon.com Inc v. eHelp
Corp., 315 F.Supp.2d 1046, 1050 (N.D. Cal. 2004)
(listing defenses of waiver, estoppel, and unclean
hands failed to provide fair notice). With these
general principles in mind, the Court will address
each of the defenses individually.

Powertech Tech., Inc.v.Tessera, Inc.CLAUDIA WILKEN

ORDER GRANTING IN

PART, AND DENYING

IN PART, MOTION TO

STRIKE AFFIRMATIVE

DEFENSES

(Docket No. 112)

Plaintiff Powertech Technology, Inc. (PTI) moves to strike all of the affirmative defenses asserted by Defendant Tessera, Inc. in this action. Tessera opposes the motion. The Court took Plaintiff’s motion under submission on the papers. Having considered the papers filed by the parties, the Court GRANTS PTI’s motion in part and DENIES it in part.

BACKGROUND

PTI filed this action on March 5, 2010, seeking declarations of non-infringement and invalidity of Tessera’s United States Patent No. 5,663,106 patent (the ‘106 patent). PTI maintains that it faces an imminent threat of injury because, in the International Trade Commission (ITC) and in another district court action then pending in Texas, Tessera had accused of infringement companies who had directly or indirectly purchased products from PTI.On April 1, 2010, Tessera moved to dismiss the case for lack of subject matter jurisdiction, stating that, to its knowledge, “PTI is a licensee in good standing and it and its customers therefore enjoy protection against any suit accusing its licensed products of infringement of the ‘106 patent or any other licensed patent.” Docket No. 14 at 6. Tessera also asserted that its license with PTI “protects PTI and its customers.” Id. at 3. Tessera further argued that, because the License Agreement required PTI to pay royalties on licensed products whether or not they were covered by a licensed patent, a justiciable controversy could not exist.In June 2010, this Court dismissed the action for lack of subject matter jurisdiction, finding that there was no Article III case or controversy between the parties, because Tessera had explicitly excluded licensed products from its enforcement actions and because PTI failed to allege an actual controversy regarding the licensing agreement. Powertech Technology, Inc. v. Tessera, Inc., 2010 U.S. Dist. Lexis 53621, at *7-9 (N.D. Cal.).Several months later, on September 30, 2011, the Federal Circuit reversed this Court’s dismissal, finding that a controversy did exist between the parties. Powertech Technology, Inc. v. Tessera, Inc., 660 F.3d 1301, 1307-10 (Fed. Cir. 2011). The court specifically noted that

we have no doubt that PTI’s customers and products were specifically targeted in [the ITC and Texas actions]. For example, witnesses for Elpida testified that the accused products . . . were licensed from several licensees, including PTI. Indeed, Tessera’s infringement expert . . . focused part of his analysis on an Elpida wBGA chip that was clearly packaged by PTI and identified with a PTI model number.

Powertech, 660 F.3d at 1308 n.4. The court also stated,

In essence, Tessera’s argument is that PTI must breach its license before it can challenge the validity of the underlying patent. This contention, however, is contrary to the Supreme Court’s decision in MedImmune [Inc. v. Genentech, Inc., 549 U.S. 118 (2007)], in which the Court held that a licensee did not need to repudiate
a license agreement by refusing to pay royalties in order to have standing to declare a patent invalid, unenforceable, or not infringed. . . . Like the petitioner in MedImmune, PTI is seeking to define its rights and obligations under its contract with Tessera. It need not repudiate its license agreement to do so. There is also no provision in the license agreement in which PTI has agreed not to argue non-infringement or invalidity.

Id. at 1308 (internal citations omitted). On this basis, the court held that “the dispute between PTI and Tessera–as to whether the license agreement requires royalty payments to be tied to valid patent coverage–is sufficient to support declaratory judgment jurisdiction,” but declined to opine on the merits of the dispute. Id. at 1310. The mandate issued on January 19, 2012. Docket No. 101.

On February 17, 2012, Tessera filed its answer to PTI’s complaint and included seven affirmative defenses. The first five affirmative defenses allege that “PTI’s claims for relief against Tessera are barred, in whole or in part, by”: (1) “the doctrine of waiver”; (2) “the doctrine of estoppel”; (3) “the doctrine of laches”; (4) “the doctrine of forfeiture”; and (5) “the equitable doctrine of unclean hands.” Answer 55 31-35. The sixth affirmative defense alleges, “No justiciable controversy exists with respect to PTI’s claims for relief against Tessera.” Id. at 5 36. The seventh affirmative defense alleges, “PTI cannot assert its claims for relief against Tessera in light of the terms of the Agreement between the parties.” Id. at 5 36.PTI filed the instant motion to strike on March 12, 2012, twenty-four days after Tessera filed its answer.

DISCUSSION

II. Tessera’s justiciability defensePTI argues that Tessera’s sixth affirmative defense, alleging that there is no justiciable controversy, should be struck as contrary to the law of the case.Tessera responds that, although the Federal Circuit found there was a justiciable controversy at the outset of this case, one must exist throughout the stages of this proceeding and thus Tessera may be able to challenge the continued justiciability in the future based on changed circumstances, without contradicting the law of the case.PTI replies that Tessera is continuing to maintain claims against PTI’s products in its petition for certiorari to review the ITC decision and in the Texas action, so “no relevant facts have changed.” Reply at 6. PTI contends, “Absent changed circumstances which do not exist here, there is simply no proper basis upon which Tessera can maintain this alleged defense at this time in light of the Federal Circuit’s ruling.” Id. PTI does not deny that changed circumstances may in the future impact the justiciability of this case.Because Tessera concedes that it cannot presently, under the law of the case, proffer sufficient facts to support this defense, and can only speculate about future events, the Court GRANTS PTI’s motion to strike this affirmative defense. This ruling is without prejudice to Tessera moving to amend its answer to assert this defense in the future, should facts later develop that could support it. See Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221, at *3 (N.D. Cal.) (noting that the Ninth Circuit “has liberalized the requirement that affirmative defenses be raised in a defendant’s initial pleading and allows affirmative defenses to be asserted in a later motion absent prejudice to the non-moving party” and that “Rule 15 permits Defendants to amend their Answer at any time with the Court’s leave”). III. Tessera’s license defensePTI argues that Tessera’s seventh defense, in which Tessera contends that “PTI cannot assert its claims for relief against Tessera in light of the terms of the Agreement between the parties,” lacks factual support and is contrary to the law of the case.In the context of its motion to strike the pleadings, the Court declines to consider PTI’s argument that the record lacks factual support for this defense. This is an evidentiary argument, which is more appropriate for adjudication at the summary judgment stage.The Court DENIES PTI’s motion to strike this defense as contrary to the law of the case. While the Federal Circuit noted the absence of a “provision in the license agreement in which PTI has agreed not to argue non-infringement or invalidity,” it also declined to express any view on the merits of the dispute as to whether the license agreement means either that PTI does not have to pay royalties if the chips do not infringe or the patents are invalid, or that royalty payments are due regardless of these factors. Powertech, 660 F.3d at 1308-10. Thus, it would not contradict the Federal Circuit’s decision to find ultimately that the license agreement provides Tessera with a defense.IV. Tessera’s first through fifth affirmative defensesPTI argues that Tessera has not adequately plead the factual basis for its remaining affirmative defenses under the standards set forth in the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).Rule 8 requires that, when “responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it.” Federal Rule of Civil Procedure 8(b). Rule 12(f) provides that, on its own or on a motion from a party, a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Federal Rule of Civil Procedure 12(f). “The purposes of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues.” Barnes v. AT&T Pension Benefit Plan–Nonbargained Program, 718 F. Supp. 2d 1167 (N.D. Cal. 2010)(citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)). If a defense is struck, “[i]n the absence of prejudice to the opposing party, leave to amend should be freely given.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979).”The Ninth Circuit has long held that ‘[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.'” Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425, at *6 (N.D. Cal.)(quoting Wyshak, 607 F.2d at 827). Since the Supreme Court’s decisions in Twombly and Iqbal, requiring that plaintiffs meet a plausibility standard in their pleadings, courts have been considering whether these decisions also “redefine[] what constitutes ‘fair notice’ of an affirmative defense pled in an answer.” Id.As both parties acknowledge, neither the Ninth Circuit nor the Supreme Court has directly addressed this question. While district courts have split on the issue, most have found that the heightened pleading standard does apply to affirmative defenses. See, e.g., Perez, 2012 WL 1029425, at *8 (collecting cases); Barnes, 718 F. Supp. 2d at 1171 (collecting cases); Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649-50 (D. Kan. 2009)(collecting cases). Within the Northern District of California, it appears that the judges who have decided the issue thus far have uniformly found that the Twombly and Iqbal standard does apply to affirmative defenses. See Perez, 2012 WL 1029425, at *6-8 (Koh, J.); Barnes & Noble, Inc. v. LSI Corp., 2012 WL 359713, at *2 (N.D. Cal.) (Chen, J.); Bottoni v. Sallie Mae, Inc., 2011 WL 3678878, at *2 (N.D. Cal.) (Beeler, M.J.); Dion, 2012 WL 160221, at *2 (Conti, J.); J & J Sports Productions, Inc. v. Mendoza-Govan, 2011 WL 1544886, at *1 (N.D. Cal.) (Alsup, J.); Barnes, 718 F. Supp. 2d at 1171-72 (Patel, J.).As other judges in the Northern District of California have already explained, Twombly and Iqbal changed the legal foundation underlying the Ninth Circuit’s Wyshak decision, and the reasoning in those decisions also applies in the context of affirmative defenses. “At the time Wyshak was decided, the fair notice pleading standard was governed by Conley v. Gibson, 355 U.S. 41(1957), which held that ‘a complaint [could] not be dismissed for failure to state a claim unless it appear[ed] beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.'” Perez, 2012 WL 1029425, at *6. “In Wyshak, the Ninth Circuit applied the Conley pleading standard for complaints to the pleading of affirmative defenses.” Id. “However, the Supreme Court’s Twombly and Iqbal decisions in 2007 and 2009, respectively, departed from Conley and redefined the pleading requirements under Rule 8.” Id. “Courts have observed that ‘Rule 8’s requirements with respect to pleading defenses in an answer parallel the Rule’s requirements for pleading claims in a complaint,'” id. (quoting Barnes, 718 F. Supp. 2d at 1172), and “this parallelism appears to be the very reason the Ninth Circuit applied Conley to the pleading of affirmative defenses in Wyshak,” id. (citing Wyshak, 607 F.2d at 827). Especially in light of the fact that the defendant bears the burden of proof on an affirmative defense, as the plaintiff does on a claim for relief, “‘Twombly‘s rationale of giving fair notice to the opposing party would seem to apply as well to affirmative defenses given the purpose of Rule 8(b)’s requirements for defenses.'” Barnes & Noble, Inc., 2012 WL 359713, at *2.Thus, this Court agrees with the other judges in this district that the heightened pleading standard set forth in Twombly and Iqbal also applies to affirmative defenses. (go online to get citing) Because Defendant’s affirmative defenses include only conclusory allegations, without providing any information about the grounds upon which the defenses rest, it has insufficiently plead these defenses as required to provide fair notice under either standard. See Yates v. Perko’s Cafe, 2011 WL 2580640, at *3 (N.D. Cal.) (“An insufficiently pled defense fails to comply with Rule 8 pleading requirements by not providing ‘plaintiff fair notice of the nature of the defense’ and the grounds upon which it rests.”) (citing Wyshak, 607 F.2d at 827). Thus, the Court GRANTS PTI’s motion to dismiss Tessera’s first five affirmative defenses. Tessera is granted leave to amend to plead these defenses with greater specificity.PTI also argues that the fifth affirmative defense, which is based on unclean hands, should be dismissed as failing to meet the requirements of Rule 9(b), to the extent that it is predicated on conduct that involves fraud or mistake. Tessera responds that it does not predicate this defense on fraud or mistake and thus Rule 9(b) is not relevant. In amending its fifth affirmative defense to satisfy the requirements of Rule 8, if Tessera bases this defense on conduct involving fraud or mistake, it must also satisfy Rule 9(b).

CONCLUSION

For the reasons set forth above, the Court GRANTS in part, and DENIES in part, PTI’s motion to strike Tessera’s affirmative defenses (Docket No. 112). Tessera is granted leave to file an amended answer to plead properly its first five affirmative defenses, which are stricken, within two weeks of the date of this Order, if it can truthfully do so. Tessera’s sixth affirmative defense is stricken without prejudice. PTI’s motion to strike is denied as to the seventh affirmative defense.IT IS SO ORDERED.Powertech Tech., Inc. v. Tessera, Inc., No. C 10-945 CW, at *1 (N.D. Cal. May. 16, 2012)

District Court jurisdiction over state issues:

FROM:https://saylordotorg.github.io/text_legal-aspects-of-marketing-and-sales/s06-01-the-relationship-between-state.html

As state courts are concerned with federal law, so federal courts are often concerned with state law and with what happens in state courts. Federal courts will consider state-law-based claims when a case involves claims using both state and federal law. Claims based on federal laws will permit the federal court to take jurisdiction over the whole case, including any state issues raised. In those cases, the federal court is said to exercise “pendent jurisdiction” over the state claims. Also, the Supreme Court will occasionally take appeals from a state supreme court where state law raises an important issue of federal law to be decided. For example, a convict on death row may claim that the state’s chosen method of execution using the injection of drugs is unusually painful and involves “cruel and unusual punishme

Whenever you’re ready, you can choose the template that works best for you and download it for free.

Answer

Answer and Counterclaim 1 claim

Sample Answer and Counterclaim

COMMONWEALTH OF MASSACHUSETTS

ESSEX, SS.

SUPERIOR COURT

DOCKET NO: 14-487D

Robert M.A. Nadeau

Plaintiff,

Nancy Madore

Defendant,

ANSWER TO COMPLAINT FOR EXPEDITED RELIEF TO COMPEL DEPOSITION TESTIMONY OF A MASSACHUSETTS RESIDENT AND COUNTERCLAIM FOR SANCTIONS

NOW COMES the Defendant, Nancy Madore, without counsel, and

answers Plaintiff’s complaint as follows:

1. Unknown.

2. Unknown.

3. Unknown.

4. Denied.

5. Denied.

6. Denied.

7. Denied.

8. Denied.

9. Denied.

10.Denied.

11.Denied.

12.Unknown.

13.Not applicable.

DEFENDANT’S COUNTERCLAIM FOR SANCTIONS

In addition to the aforementioned responses, Defendant makes the following assertions:

1. The Plaintiff, Robert M.A. Nadeau, has in the past, and continues to use his law license and all the trusts that come with it, to terrorize people.

2. The Plaintiff, Robert M.A. Nadeau, has been a party in well over twenty lawsuits in the last decade.

3. The Plaintiff, Robert M.A. Nadeau, has already sued the Defendant twice. The claims in both lawsuits were withdrawn before trial, but only after a grueling, expensive, drawn out and extremely abusive litigation process.

4. The only purpose served in the above referenced litigations against the Defendant, was that the Plaintiff was able to use those litigations to harass the Defendant, the Defendant’s family, and the Defendant’s friend. This failure to produce a legitimate case while harassing his victims was noticed by a judge in yet another of the Plaintiff’s litigations, who stated in his final order: “No credible evidence was produced by the Plaintiff [Nadeau] to explain how [his evidence] was anything other his harassing [the Defendant in that case].” (see Robert M.A. Nadeau vs. XXX, York District Court, PA-13-185).

5. In fact, Judge Dreschler, of this Court, also noticed the abusive, harassing nature of Nadeau’s litigation against the Defendant in his previous litigation against her when, in particular he singled out Nadeau’s sending monthly bills to the Defendant for that very same litigation he was pursuing against her, during the litigation, calling his behavior ‘outrageous and unacceptable.’ (see Robert M.A. Nadeau vs. Nancy Madore, ESCV2014-00487-D, Dec 3, 2014 order).

6. These are not isolated incidents. Other judges, in other cases, have also remarked upon Nadeau’s abusive litigation tactics (although no one ever actually does anything about it). One judge was particularly thorough in describing the abuse in his final order (see Robert M.A. Nadeau et el, v. Hunt, York Superior Court, CV-05-221). This pattern of behavior will continue until the Court addresses it.

7. In all of these cases, Nadeau’s lawsuits, or the bulk of his claims, were either thrown out or withdrawn before trial.

8. In all of these cases, the Plaintiff makes wild accusations without ever offering a shred of evidence, always promising that the evidence will be revealed at a later date, and always failing to provide the promised evidence.

9. In all of these cases, the various Courts trust the Plaintiff, based on his position as a lawyer.

10.These frivolous lawsuits, and the illegal misconduct that accompanies them, is now actively being investigated by the Massachusetts BBO.

11.The Plaintiff’s latest lawsuit against [Defendant in Maine, in case Nadeau is seeking this deposition for] is clearly more of the same. The most obvious flaw in the Plaintiff’s case is that the Plaintiff is suing for damages caused by signs that he alleges (again, without evidence) to be illegal, and even more inconceivably, to have caused his loss of the election, despite the fact that the Plaintiff was in the local news every other week, being cited for his numerous violations of the judicial codes, and for his misconduct as an attorney. In fact, long before the election, in the Plaintiff’s second lawsuit against this Defendant, he had been claiming that the Defendant had caused a ‘serious and irreparable decline’ to his law firm, which indicates this turn in public opinion long before [his current defendant in Maine] put the ‘no Nadeau’ signs out on his own property.

12.The frivolousness of the Plaintiff’s lawsuit against [the Maine Defendant] and this complaint to depose the Defendant is further underscored by the Plaintiff’s claims regarding the deposition of the Defendant, all of which the Defendant denies, and all of which the Plaintiff has once again failed to provide a single shred of evidence to support.

13.The motives for both the lawsuit against [his Maine defendant] and this complaint for a deposition against the Defendant are clear: [the Maine Defendant] is the son of [the woman], who [works in the] Court where the Plaintiff used to be a judge. At one point [the woman] reported misconduct she witnessed from the Plaintiff. Since then, he has actively harassed her. In fact, it was his behavior, not hers or her sons, during the last election, which was unethical and unprofessional. And here again, the Plaintiff has been cited for his unethical and illegal behavior during the election process before, and was even given a 30 day suspension for doing it in a previous election. (see Maine Supreme Judicial Court Decision, JUD-05-01)

14.The Defendant has never met, or spoken to, [the Maine Defendant]. She has spoken to his mother, [the woman who worked with Nadeau], on several occasions. The activities that the Plaintiff describes in his complaint simply did not occur (incidentally, the activities the Plaintiff fabricated do not represent misconduct or illegal behavior in any event). Once again, all of the Plaintiff’s allegations are vague and unfounded, and offered without the slightest bit of evidence.

15.It is noteworthy that the Plaintiff represents himself in these litigations, so that it is his victims, not himself, who have to pay the cost of his abusive litigation techniques.

16.The Plaintiff is a seasoned attorney and has also served as a part time elected judge. Therefore, he knows, or should know, that any claims he makes in his pleadings should be truthful. He also knows, or should know, that his requests during discovery should be based on truths. He cannot prove any of his claims against the Defendant in his Complaint with this Court, because none of them are true. Yet he is expecting that this Court will trust him, as a seasoned lawyer and former judge, just as the courts always do, to be acting on facts and in good faith.

17.Given the abusive, litigious and dishonest history of this Plaintiff, along with the numerous citations from judicial and other disciplinary boards, and the recent ongoing investigation with the Massachusetts BBO, it would be extremely remiss of this Court to trust this Plaintiff and give him the benefit of the doubt, at the risk of him further harming this Defendant.

18.Given the abusive, litigious and dishonest history of this Plaintiff, along with the numerous citations from judicial and other disciplinary boards, and the recent ongoing investigation with the Massachusetts BBO, it would be an act of injustice to order this Defendant to attend yet another deposition to answer what almost always amounts to unrelated but very personal questions to provide the Plaintiff with information he can use against his deponents outside the scope of the litigation, which is not how the lawmakers intended the discovery process to be used, but it is how this Plaintiff has used the process in every single litigation the Defendant has been forced to participate in.

19.Regardless of this Court’s ruling on this matter, the Defendant has yet again been forced to respond to yet another unfounded claim from this Plaintiff. At some point, the Court must protect this Defendant’s civil rights against what is clearly harassment from this Plaintiff.

WHEREFORE THE DEFENDANT, Nancy Madore, requests the following relief:

1. That the Court deny the Plaintiff’s Complaint against the Defendant, if not on the basis of the Plaintiff’s past abusive history and his harassment of this Defendant, then based on the fact that the claims in the Plaintiff’s Complaint, even if true, would not merit the inconvenience of having this Defendant travel out of state to attend a deposition on such vague and flimsy claims (ie., how, specifically, were the signs [his Maine Defendant] supposedly put in his yard ‘illegal’?).

2. That if the Court grants the Plaintiff’s Complaint against the Defendant, that it order the Plaintiff to put his questions in writing, and submit them for approval from this Court before submitting them to the Defendant; and that the Court permit the Defendant to answer in writing as well.

3. That the Court Sanction the Plaintiff on two counts: first, for the Defendant, for the time involved in having to answer yet another Complaint that was submitted to this Court without any evidence to support it—especially in light of his most recent litigation against her in this same Court, which ended on April 2017, when the Plaintiff submitted a Motion to Dismiss his own case on the morning of trial; and second, a sanction for the Court, for the time involved in reading his complaint and this answer, and scheduling a hearing and/or issuing an order.

4. Any and all other relief this Court deems just.

DEFENDANT

_________________________________________________ _____________________

Nancy Madore Date

[Address]

[Phone]

Certificate of Service

I, Nancy Madore, certify that I caused a copy of the foregoing document to be mailed to the Plaintiff, Robert M.A., at his latest known address, as identified in his Complaint, on the date indicated above.

_____________________________