incorporated its counterclaim into its answer and because the counterclaim satisfies Rule 9(b)
with respect to certain reimbursement requests, I find that State Farm’s second and sixth
affirmative defenses satisfy Rule 9(b) to the extent that State Farm’s counterclaim does.
Therefore, I will grant in part and deny in part counterclaim-defendants’ motion to dismiss the
second and sixth affirmative defenses to the same extent that I granted in part and denied in part
their motion to dismiss the counterclaim.
No. 15: “Bases Evident” in Evidence
State Farm’s fifteenth affirmative defense states: “State Farm also incorporates the bases
evident within the documents being produced by State Farm.” (Answer at 24.) The court does
not recognize “bases evident within the documents” as an affirmative defense, and will dismiss it
accordingly. See Fed. R. Civ. Pro. 8(c)(1).
No. 17: Offset
State Farm’s seventeenth affirmative defense states: “In the event plaintiff prevails on any
of its claims, the amount of recoverable damages are offset/reduced by the amount of damages
recoverable pursuant to . . . State Farm’s counterclaim.” (Id.) Counterclaim-defendants argue
that this defense should be dismissed because State Farm’s counterclaim does not satisfy the
applicable pleading standard. Because I find that portions of the counterclaim do satisfy Rule
9(b), I will deny counterclaim-defendants’ motion to dismiss State Farm’s seventeenth
In summary, I will deny counterclaim-defendants’ motion to dismiss the fraud claim in
Count I, the § 4117(a) claims in Count II, the unjust enrichment claim in Count III, and the