Mateer v. Peloton Interactive, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOSEPH D. MATEER, ) CASE NO. 1:22-cv-00740 CHRISTOPHER BRANCHCOMB, ) and KATHARINE JOHNSON, ) JUDGE LORNA G. SCHOFIELD On behalf of themselves and all others ) similarly situated, ) MAGISTRATE JUDGE Plaintiffs, GABRIEL W. GORENSTEIN ) VS. ) PELOTON INTERACTIVE, INC. ) MEMORANDUM ENDORSED Defendant. ) PLAINTIFFS’ NOTICE OF MOTION TO STRIKE CERTAIN OF DEFENDANT’S AMENDED AFFIRMATIVE DEFENSES PLEASE TAKE NOTICE THAT, pursuant to Rules 12 and 9 of the Federal Rules of Civil Procedure, and upon the accompanying Memorandum of Law in support hereof, Plaintiffs Mateer, Branchcomb, Johnson, and the members of the collective action conditionally certified pursuant to the federal Fair Labor Standards Act, hereby move to strike the following items from the Amended Answer [Dkt. No. 110] filed by Defendant Peloton Interactive, Inc.: The Third, Fourth, Fifth, Sixth, Ninth, Tenth, and Twenty-Second Affirmative Defenses; and the Wherefore Clause contained therein.

Per paragraph 2.B of this Court’s Individual Practices, the parties have conferred and have agreed upon the following briefing schedule: Plaintiffs’ Notice of Motion and Memorandum due October 14.

Defendant’s Memorandum in Opposition due October 28.

Plaintiffs’ Reply Memorandum due November 4.

Dated: October 14, 2022 Respectfully submitted, By:_/s/ Jason R. Bristol /s/ J.R. Howell Jason R. Bristol (OH #0072989) (pro hac vice) J.R. Howell (CA #268086) (pro hac vice) jbristol @crklaw.com jrhowell @ jrhlegalstrategies.com James B. Rosenthal (OH #0062872) (pro hac vice) | LAW OFFICE OF J.R. HOWELL [email protected] 1223 Wilshire Boulevard COHEN ROSENTHAL & KRAMER LLP P.O. Box 543 3208 Clinton Avenue Santa Monica, CA 90403 Cleveland, Ohio 44113 Phone: (202) 650-8867 (216) 815-9500 (Tel.) Attorneys for Plaintiffs, the FLSA Collective, and Proposed Classes In light of the fact that motions to strike are "disfavored," Rich v. New York, 2022 WL 4241380 at *1 (S.D.N.Y. Sept. 15, 2022), the Court reminds the defendant of its order of September 2, 2022 (Docket #117). The Court does not wish to adjudicate questions of what must be pled to support an affirmative defense if in fact the defendant is able to amend its answer now to satisfy plaintiffs’ challenges Accordingly, defendant is given leave to file a Second Amended Answer by the due date of its opposition brief. In such case, the parties shall consult and if any problems remain, plaintiff has leav to file a new motion to strike (following whose disposition defendant would be unlikely to be granted any further leave to amend). If defendant does not plan to file a Second Amended Answer, the briefing on the current motion will proceed.

So Ordered.

La 1 Gevsle_ United States Magistrate Judge October 17, 2022 CERTIFICATE OF SERVICE On this 14th day of October, 2022, a copy of the foregoing Plaintiffs’ Notice of Motion to Strike Certain of Defendant’s Amended Affirmative Defenses was served electronically on Counsel for Defendant Peloton Interactive, Inc., listed below: Harris Mufson, Esq. Ryan Stewart, Esq.

Danielle Moss, Esq. Gibson, Dunn & Crutcher LLP Hayley Fritchie, Esq. 1050 Connecticut Avenue NW Stephanie Silvano, Esq. Washington D.C. 20036-5306 Gibson, Dunn & Crutcher LLP Park Avenue New York, NY 10166-0193 /s/ J.R. Howell J.R. Howell (CA #268086) (pro hac vice) One of the Attorneys for Plaintiffs and the Proposed Classes