govinfo:USCOURTS-ksd-6_25-cv-01071-3

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS 
 
ANTIMO, LLC, ) 
 ) 
 Plaintiff/ ) 
 Counterclaim Def., ) 
 ) CIVIL ACTION 
v. ) 
 ) No. 25-1071-KHV 
BRENDAN REICH, ) 
 ) 
 Defendant/ ) 
 Counterclaim Pltf. ) 
____________________________________________) 
 
MEMORANDUM AND ORDER 
 On March 14, 2025, in the District Court of Sedgwick County, Kansas, plaintiff Antimo, 
LLC, filed suit against its former employee, Brendan Reich. On April 21, 2025, defendant 
removed the case to federal court based on diversity jurisdiction. See Notice Of Removal (Doc. 
#1). Under Kansas law, plaintiff assert ed claims for fraud, fraud by silence, constructive fraud, 
breach of fiduciary duty, unjust enrichment, negligent misrepresentation and constructive trust. 
See First Amended Complaint (Doc. #12) filed June 2, 2025. On August 6, 2025, on defendant’s 
motion, the Court dismissed plaintiff’s claim for unjust enrichment. See Memorandum and Order 
(Doc. #23). 
 On August 25, 2025, plaintiff filed its Second Amended Complaint (Doc. #30), re-asserting 
the original claims except unjust enrichment. On September 8, 2025, defendant filed its Answer 
To Plaintiff’s Second Amended Complaint, Affirmative Defenses, And Counterclaim (Doc. #34), 
asserting several affirmative defenses and a counterclaim which argued that a prior settlement 
agreement bars plaintiff ’s claims . On December 12, 2025, o n plaintiff ’s motion, the Court 
dismissed defendant’s counterclaim and struck two of his affirmative defenses due to insufficient 

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factual allegations concerning the prior settlement agreement . See Memorandum And Order 
(Doc. #52). 
 On February 6, 202 6, plaintiff filed its Third Amended Complaint (Doc. #63), adding 
claims for punitive damages premised on willful conduct, wanton conduct and/or fraud. On March 
23, 2026, United States Magistrate Judge Gwynne E. Birzer granted defendant’s motion for leave 
to amend his answer to correct the prior pleading defects and re-assert the affirmative defenses and 
counterclaim. See Memorandum And Order (Doc. #75). On March 26, 2026, defendant filed his 
First Amended Answer To Plaintiff ’s Third Amended Complaint, Affirmative Defenses, And 
Counterclaim (Doc. #76), re-asserting the affirmative defenses and counterclaim. 
 This matter comes before the Court on Plaintiff/Counterclaim Defendant Antimo, LLC ’s 
Motion To Strike Or Dismiss Defendant Reich ’s Counterclaim For Breach Of Contract & To 
Strike His Third & Fourth Affirmative Defenses (Doc. #81) filed April 8, 2026. For reasons stated 
below, the Court overrules plaintiff’s motion. 
Legal Standard 
 Plaintiff asserts that the Court should dismiss defendant’s counterclaim under Rules 
12(b)(1) and 12(b)(6) , Fed. R. Civ. P. , because the Court lacks subject matter jurisdiction and 
defendant’s counterclaim does not state a claim on which relief can be granted . Plaintiff also 
asserts that the Court should strike two of defendant’s affirmative defenses under Rule 12(f). 
 When defendant seeks dismissal under Rules 12(b)(1) and 12(b)(6) in the alternative, the 
Court must first decide the jurisdictional challenges because the latter challenge w ill be moot if 
the Court lacks jurisdiction. See Creamer v. Gildemeister, No. 15-4871-KHV, 2015 WL 6828186, 
at *2 (D. Kan. Nov. 6, 2015). Dismissal under Rule 12(b)(1) is appropriate when the Court lacks 
subject matter jurisdiction over a claim for relief. The party asserting jurisdiction has the burden 

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of establishing subject matter jurisdiction. Id. (citing Port City Props. v. Union Pac. R.R. Co., 518 
F.3d 1186, 1189 (10th Cir. 2008)). 
 In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court 
assumes as true all well -pleaded factual allegations and determines whether they plausibly give 
rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion 
to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible— 
and not merely conceivable —on its face. Id. at 679–80; Bell Atl. Corp. v. Twombly , 550 U.S. 
544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court 
draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679. The Court’s standard 
to dismiss complaints under Rule 12(b)(6) applies equally to counterclaims. Ramada Franchise 
Sys., Inc. v. Tresprop, Ltd., 188 F.R.D. 610, 612 (D. Kan. 1999). 
 The Court need not accept as true those allegations which state only legal conclusions. See 
id.; United States v. Herring, 935 F.3d 1102, 1110 (10th Cir. 2019). Plaintiff bears the burden of 
framing its claims with enough factual matter to suggest that it is entitled to relief; it is not enough 
to make threadbare recitals of a cause of action accompanied by conclusory statements. See 
Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim by pleading factual content 
from which the Court can reasonably infer that defendant is liable for the alleged misconduct. 
Iqbal, 556 U.S. at 678. Plaintiff must show more than a sheer possibility that defendant has acted 
unlawfully—it is not enough to plead facts that are “merely consistent” with defendant’s liability. 
Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a 
formulaic recitation of the elements of a cause of action or naked assertions devoid of further 
factual enhancement will not stand. Id. Similarly, where the well-pleaded facts do not permit the 
Court to infer more than mere possibility of misconduct, the pleading has alleged —but has not 

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“shown”—that the pleader is entitled to relief. Id. at 679. The degree of specificity necessary to 
establish plausibility and fair notice depends on context, because what constitutes fair notice under 
Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Okla., 519 F.3d 1242, 1248 
(10th Cir. 2008). 
Rule 12(f) provides that “the court may order stricken from any pleading any insufficient 
defense or any redundant, immaterial, impertinent, or scandalous matter.” Striking material from 
a pleading is a generally disfavored remedy, Nwakpuda v. Falley’s, Inc., 14 F.Supp.2d 1213, 1215 
(D. Kan. 1998), and the Court should decline to do so unless the allegations (1) have no possible 
relation to the controversy and (2) may prejudice one of the parties, Sunlight Saunas, Inc. v. 
Sundance Sauna, Inc., 427 F. Supp. 2d 1022, 1029 (D. Kan. 2006). Any doubt as to the utility of 
the material to be stricken should be resolved against the motion to strike. Nwakpuda, 14 F. Supp. 
2d at 1215. The purpose of Rule 12(f) is to minimize delay, prejudice and confusion by narrowing 
the issues for discovery and trial. Stubbs v. McDonald ’s Corp., 224 F.R.D. 668, 676 (D. Kan. 
2004). 
Factual And Procedural Background 
 The Court recited the background facts in its Memorandum And Order (Doc #23) filed 
August 6, 2025 and Memorandum And Order (Doc. #52) filed December 12, 2025. Subsequent 
procedural developments and a dditional relevant facts, as alleged in Reich’s First Amended 
Answer To Plaintiff’s Third Amended Complaint, Affirmative Defenses, And Counterclaim 
(Doc. #76), are as follows: 
 On December 12, 2025, on Antimo ’s motion, the Court dismissed Reich ’s counterclaim 
for breach of contract and struck affirmative defenses 3 and 4, since they all relied on a settlement 
agreement regarding which Reich did not plead sufficient facts . The settlement agreement was 

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between Antimo, Reich and Reich’s current employer, Atlas. In Section 6 of the agreement, titled 
“Covenant Not To Sue,” Antimo covenanted not to sue Reich if Atlas satisfied its obligations under 
the agreement. The pleadings contained no allegation , however, that Atlas had satisfied its 
obligations. Memorandum And Order (Doc. #52) at 5. The Court therefore granted Antimo’s 
motion to dismiss Reich’s counterclaim and affirmative defenses 3 and 4. 
 On January 16, 2026, Reich filed his Motion For Leave To Amend Affirmative Defenses 
And Counterclaim (Doc. #57) under Rule 15 (a)(2), Fed. R. Civ. P., to cure the pleading 
deficiencies which the Court had identified. Antimo opposed the motion, arguing that the Court 
had dismissed Reich’s counterclaim with prejudice, since the Court’s order did not specify that it 
was without prejudice and it therefore operate d as a final adjudication on the merits under 
Rule 41(b). Further, Antimo opposed the propos ed amendment as futile under the settlement 
agreement’s fraud carve-out provision in Section 5, since all of Antimo’s claims are based in fraud. 
After considering the parties’ briefs and holding oral argument on February 12, 2026, Judge Birzer 
granted Reich’s motion to amend. Memorandum And Order (Doc. #75) filed March 23, 2026. 
The Court reasoned that since the order dismissed Reich’s counterclaim without directing the clerk 
to enter final judgment and the clerk did not enter a judgment sheet, the dismissa l was not a final 
judgment. See U.S. Surgical Corp. v. Orris, Inc. , 47 F. Supp. 2d 1270, 1271 (D. Kan. 1999) (in 
case involving multiple claims for relief, no final judgment is entered until all claims have been 
adjudicated unless court expressly directs entry of final judgment). Since the Court had not entered 
a final judgment, Judge Birzer held that she had discretion to grant the motion to amend under 
Rule 15(a)(2) and sustained Reich’s motion. 
 On March 26, 2026, Reich filed his first amended answer, affirmative defenses and 
counterclaim. The first amended answer alleges that on October 2, 2024, Reich, Atlas and Antimo 

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entered into a valid and enforceable settlement agreement, which read as follows: 
5. RELEASE OF ATLAS AND REICH. In consideration of the settlement terms 
contained in this Agreement, ANTIMO . . . hereby unconditionally and irrevocably 
. . . releases . . . and covenants not to sue REICH and ATLAS . . . from any and all 
claims . . . however, and notwithstanding anything to the contrary herein, ANTIMO 
shall not release REICH for any act or non-action where such act, omission or error 
in judgment, occurring from the July 6, 2020 through the date of this Agreement, 
constitutes, fraud, gross negligence, or willful misconduct. 
 
6. COVENANT NOT TO SUE . Upon ATLAS’S satisfaction of its obligations 
under this Agreement, ANTIMO . . . hereby covenants not to sue and fully releases 
. . . ATLAS and REICH with respect to and from any and all claims . . . of whatever 
kind or nature . . . in connection with REICH ’s employment and termination of 
employment. 
First Amended Answer (Doc. #76) at 15–16. Reich also alleges that all conditions precedent have 
occurred or been performed and that Atlas has satisfied all its obligations under the settlement 
agreement. Id. at 17. Reich’s counter claim alleges that Antimo breached Section 6 of the 
agreement by bringing this lawsuit, and that he has suffered damages by way of attorney’s fees 
and costs of defense. 
 Reich’s third and fourth affirmative defenses read as follows: 
Third Affirmative Defense: Plaintiff’s claims are barred, in whole or in part, by 
Section 5 (Release of Atlas and Reich) of a valid and enforceable Settlement 
Agreement and Release executed on October 2, 2024. Section 5 bars Antimo ’s 
claims to the extent Mr. Reich ’s alleged acts or non -actions are not proven to 
constitute, fraud, gross negligence, or willful misconduct. 
 
Fourth Affirmative Defense: Plaintiff’s claims are barred, in whole or in part, by 
Section 6 (Covenant Not to Sue) of a valid and enforceable Settlement Agreement 
and Release executed on October 2, 2024. . . . Section 6 does not reserve Antimo’s 
rights to sue for any acts or omissions constituting fraud, gross negligence, or 
willful misconduct. All conditions precedent have occurred or been performed, 
including Atlas has satisfied all of its obligations under the Settlement Agreement 
and Release . Therefore, all of Antimo ’s claims are barred by Section 6 of the 
Settlement Agreement and Release. 
 
Id. at 11–12. 
Analysis 
Antimo asserts claims for fraud, fraud by silence, constructive fraud, breach of fiduciary 

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duty, negligent misrepresentation and constructive trust. Reich’s counterclaim asserts that the 
settlement agreement bars these claims. Antimo asks the Court to dismiss Reich ’s counterclaim 
under Rule 12(b)(1) because the Court lacks subject matter jurisdiction and under Rule 12(b)(6) 
because Reich fails to state a claim on which relief can be granted. Under Rule 12(f), Antimo also 
moves to strike Reich’s affirmative defenses 3 and 4 as insufficient and immaterial. 
A court without jurisdiction over the parties cannot render a valid judgment. See OMI 
Holdings, Inc. v. Royal Ins. Co. of Canada , 149 F.3d 1086, 1090 (10th Cir. 1998). Accordingly, 
before addressing the merits, the Court must determine whether it has subject matter jurisdiction 
over defendant ’s counterclaim. See id.; see also First Magnus Financial Corp. v. Star Equity 
Funding, LLC, No. 06-2426-JWL, 2007 WL 635312, at *4 (D. Kan. Feb. 27, 2007) (not addressing 
merits of Rule 12(b)(6) motion because court lacked personal jurisdiction). 
I. 12(b)(1)–Subject Matter Jurisdiction 
Antimo argues that the Court lacks subject matter jurisdiction because Reich does not assert 
the minimum amount in controversy, $75,000 exclusive of interest and costs, for diversity 
jurisdiction under 28 U.S.C. § 1332, since his only damages are attorney ’s fees and costs from 
defending this lawsuit. Antimo asserted this exact argument in its prior Motion To Strike Or 
Dismiss (Doc. #42) filed September 29, 2025. The Court has already considered and rejected it. 
Memorandum And Order (Doc. #52) at 6 –11. The Court has ancillary and supplemental 
jurisdiction over Reich ’s counterclaim, as well as diversity jurisdiction since Reich is pursuing 
attorney’s fees as actual damages. See Paper, Allied, Chem. & Energy Workers Int’l Union, Loc. 
5-508, AFL–CIO v. Slurry Explosive Corp., 107 F. Supp. 2d 1311, 1331 (D. Kan. 2000). Antimo 
does not raise any new facts, caselaw or legal issues with regard to subject matter jurisdiction. The 
Court therefore incorporates its prior decision and finds that Antimo’s argument is without merit. 

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II. 12(b)(6)–Failure To State A Claim 
Antimo moves the Court to dismiss Reich’s counterclaim under Rule 12(b)(6) , arguing 
Reich has failed to state a claim on which relief c an be granted because (1) the Court already 
dismissed the counterclaim so it is subject to claim preclusion, (2) the settlement agreement allows 
Antimo’s fraud claims so Antimo did not breach the agreement by bringing this suit and (3) Reich 
failed to mitigate his damages. 
A. Claim Preclusion 
Antimo argues that Reich ’s counterclaim is precluded since the Court already dismissed 
it.1 Involuntary dismissals are governed by Rule 41(b), Fed. R. Civ. P., which reads as follows: 
“Unless the dismissal order states otherwise, a dismissal under this subsection (b) and any 
dismissal not under this rule . . . operates as an adjudication on the merits. ” Antimo argues that 
the Tenth Circuit interprets Rule 41(b) to require that where an involuntary dismissal does not 
specify whether it is with or without prejudice, the Court of Appeals must presume that it was with 
prejudice. Webb v. Claimetrics Mgmt., LLC , 412 F. App ’x 107, 108 (10th Cir. 2011) . Antimo 
acknowledges that the Court did not enter a judgment of dismissal, but argues that under Tenth 
Circuit law and Rule 41(b), the Court’s dismissal of the counterclaim constituted a final judgment 
on the merits and the re-asserted counterclaim is therefore precluded.2 
Reich responds that claim preclusion requires a final judgment in an earlier action, and this 
 
1 Claim preclusion bars a party from relitigating a legal claim that was or could 
have been the subject of a previously issued final judgment. Markley v. U.S. Bank National 
Ass’n, 142 F.4th 732, 736 n.2 (10th Cir. 2025). 
 
2 Antimo first asserted this argument in opposing Reich’s motion for leave to amend. 
See Response Brief In Opposition Of Defendant Reich’s Motion For Leave To Amend Affirmative 
Defenses And Counterclaim (Doc. #58) filed January 23, 2026. To the extent Antimo argues that 
Judge Birzer erred in granting leave to amend, Antimo had to object under Rule 72 Fed. R. Civ. 
P., to be heard on this issue. 

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case involves neither a final judgment nor an earlier action. Choice Hospice, Inc. v. Axxess Tech. 
Sols., Inc., 125 F.4th 1000, 1010 (10th Cir. 2025). In Choice Hospice, Inc., the Tenth Circuit held 
that claim preclusion did not apply to defendant’s second motion to vacate, because “there was 
only one action and thus no ‘earlier action. ’” Id. Antimo’s reply does not address the issue 
whether claim preclusion requires a decision from a separate, earlier action. 
 For claim preclusion to apply, the party invoking the doctrine must show that there was: 
“(1) a final judgment on the merits in an earlier action; (2) identity of parties or privies in the two 
suits; and (3) identity of the cause of action in both suits.” Markley, 142 F.4th at 737, citing Wilkes 
v. Wyoming Dep’t of Emp. Div. of Lab. Standards, 314 F.3d 501, 504 (10th Cir. 2002) (emphasis 
added). Notably, each factor requires a second, earlier lawsuit. Indeed, the Tenth Circuit 
specifically addressed this issue in Choice Hospice, Inc., and found that claim preclusion did not 
apply within the context of one action, even where the claims at issue were dismissed in a final 
judgment. 125 F.4th at 1010. The Supreme Court has also addressed this issue, stating that claim 
preclusion does not apply to efforts to obtain supplemental relief in the original action, or direct 
attacks on the judgment. Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc. , 590 U.S. 
405, 416 (2020); see also 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner, Federal 
Practice § 131.31[1], p. 131 –116 (3d ed. 2019) (claim preclusion applies “to a final judgment 
rendered in an action separate from that in which the doctrine is asserted”). Therefore, the doctrine 
of claim preclusion does not apply to this case. 
Since claim preclusion is clearly inapplicable, the Court need not reach Antimo’s argument 
that its prior order of dismissal was a final judgment on the merits. Judge Birzer correctly found 
that it was not. Antimo did not seek reconsideration pursuant to Local Rule 7.3 or object pursuant 
to Rule 72, therefore review of that order is not before the Court. Stated otherwise, Antimo’s claim 

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preclusion argument is itself precluded. 
Finally, and perhaps most importantly, Antimo’s reliance on Webb is misplaced. The 
Court does not need to “presume” the intended effect of its own orders . The Court dismissed 
Reich’s counterclaim because of factual pleading deficiencies and anticipated that if he could plead 
sufficient facts to support his claim , he might file a timely motion to amend . The Court granted 
leave for Reich to file his amended answer under Rule 15(a)(2), and his amended answer and 
counterclaim are properly before the Court now. 
B. Breach of Contract 
Antimo seeks dismissal of Reich ’s counterclaim because Section 5 of the settlement 
agreement preserves claims for “fraud, gross negligence, or willful misconduct” so it cannot be in 
breach of the agreement. Antimo argues that Section 5 and Section 6 must be read together, since 
both contain language amounting to a release, and that the Section 5 carve-out for fraud applies to 
the Section 6 covenant not to sue as well. Antimo concludes that all of its claims are for fraud, 
gross negligence or willful misco nduct, so Reich has not stated a claim on which relief can be 
granted. 
Reich argues that Section 5 and Section 6 are distinct sections that serve different purposes, 
and that the fraud carve-out in Section 5 does not extend to the covenant not to sue in Section 6. 
The elements of a breach of contract claim are as follows: (1) the existence of a contract 
between the parties; (2) consideration; (3) defendant ’s performance or willingness to perform in 
compliance with the contract; (4) plaintiff’s breach of the contract; and (5) damage on account of 
the breach. Britvic Soft Drinks Ltd. v. ACSIS Techs., Inc. , 265 F. Supp. 2d 1179, 1187 
(D. Kan. 2003). At this stage in the litigation, Reich must allege sufficient facts to show a plausible 
claim for breach of contract. The parties appear to agree that plaintiff has alleged all elements of 

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a breach of contract claim, except whether this suit breaches the settlement agreement. 
 Sections 5 and 6 each contain explicit releases and covenants not to sue, so Antimo ’s 
argument that they must be read together is confusing. Although it contains a covenant not to sue, 
Section 5 is entitled “Release of Atlas and Reich.” Section 6 also contains a covenant not to sue, 
but is expressly entitled “Covenant Not To Sue.” In Section 5, Antimo releases and covenants not 
to sue Reich from any and all claims except for “any act or non-action where such act, omission 
or error in judgment, occurring from the July 6, 2020 through the date of this Agreement, 
constitutes, fraud, gross negligence, or willful misconduct.” First Amended Answer (Doc. #76) at 
15–16. In Section 6, upon Atlas’s satisfaction of its obligations under th e agreement, Antimo 
covenants not to sue and fully releases Atlas and Reich from claims “arising under or in connection 
with Reich’s employment and termination of employment .” Id. Section 6 does not contain a 
carve-out provision for fraud claims, while Section 5 does. 
Reich argues that these are distinct provisions which must be read separately, so under the 
plain language of the contract, the fraud exception in Section 5 does not extend to Section 6. Reich 
argues the release and the covenant not to sue serve distinct purposes : a release extinguishes the 
substantive right to assert a claim while a covenant not to sue imposes an independent procedural 
bar on litigating a claim. Reich argues that this reading reflects the deliberate structure of the 
contract, i.e. that under Section 5, Antimo initially retained the right to sue Reich for fraud, gross 
negligence or willful misconduct , but once Atlas satisfied its obligations, Section 6 required 
Antimo to relinquish the right to sue Reich for any claims—including fraud. 
Antimo responds that the settlement agreement specifically intended to preserve fraud 
claims and that allowing Section 6 to eliminate Section 5’s fraud carve-out produces an internally 
contradictory result since it would essentially render Section 5 meaningless, which Kansas courts 

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do not favor, citing In re Williams, 183 B.R. 895 (1995). 
The Court cannot find as a matter of law that Antimo ’s interpretation of the settlement 
agreement is correct. Reich’s interpretation of the settlement agreement is plausible. First, as 
Reich correctly argues, a covenant not to sue and a release are substantively different agreements 
that entail different legal rights. See Smith v. Kansas Pub. Emps. Ret. Sys. , No. 18 -2340-CM, 
2020 WL 618608, at *1 (D. Kan. Feb. 10, 2020). The agreement has two distinctly titled sections 
which contain separate explicit releases and covenants not to sue. Reich’s unrefuted analogy to In 
Matter of Est. of Tantillo , No. 86,726, 2002 WL 35657346 , at *2 (Kan. Ct. App. Mar. 29, 2002) 
is persuasive. There, plaintiffs executed a settlement agreement which agreed to release “the 
Tantillo Group” from “any and all claims ” and in a later section titled “Covenant Not To Sue,” 
also agreed not to sue for “any claim.” The latter covenant did not specify that it only applied to 
claims against the Tantillo Group. Id. The Kansas Court of Appeals found that the first release’s 
limitation to the Tantillo group did not extend to the latter covenant not to sue, since the latter 
covenant contained no such limiting language. It therefore found that the agreement barred 
plaintiffs from suing anyone, not just those in the Tantillo group. Id. Under Tantillo, it is clearly 
plausible that under Kansas law, the Section 5 reservation of fraud claims does not apply to the 
Section 6 covenant not to sue. Reich alleged a plausible claim for breach of contract under Section 
6. 
C. Failure To Mitigate 
Antimo seeks dismissal of Reich ’s counterclaim because Kansas law imposes a duty to 
mitigate breach of contract damages, which Reich has not done, since he did not move to dismiss 
this case based on the settlement agreement. This argument fails, since failure to mitigate damages 
is an affirmative defense, not a basis for dismissal under 12(b)(6). Further, if the defense is proven, 

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the result is that the party may not recover damages which were avoidable —the law does not 
penalize a party’s inaction, it just does not compensate the party for it. Huffman v. Ace Elec. Co., 
883 F. Supp. 1469, 1477 (D. Kan. 1995) . Here, any failure to mitigate would lower Reich’s 
recoverable damages; it would not render his claim implausible pursuant to 12(b)(6). 
III. 12(f)–Insufficient And Immaterial 
Under Rule 12(f), Antimo asks the Court to strike Reich ’s affirmative defenses 3 and 4, 
which argue that the settlement agreement bars Antimo’s claims. Defense 3 argues that Antimo’s 
claims breach Section 5 to the extent that Reich’s acts are not proven to constitute fraud. Defense 
4 argues that Section 6 bars Antimo’s claims. 
The Court may strike a defense if it cannot succeed, as a matter of law, under any 
circumstances. Wilhelm v. TLC Lawn Care, Inc., No. 07-2465-KHV, 2008 WL 474265, at *2 (D. 
Kan. Feb. 19, 2008) . The Court should decline to strike material from a pleading unless that 
material has no possible relation to the controversy and may prejudice the opposing party. Rubio 
ex rel. Z.R. v. Turner Unified Sch. Dist. No. 202, 475 F. Supp. 2d 1092, 1101 (D. Kan. 2007). 
Antimo has not argued that it may be prejudiced by the mere assertion of these two 
defenses. For this reason alone, plaintiffs ’ motion to strike is without merit. Moreover, a s 
discussed above, the Court is not convinced that Reich’s interpretation of the settlement agreement 
is implausible and cannot succeed under any circumstances. Therefore, the Court will not strike 
any of defendant’s affirmative defenses. 
IT IS THEREFORE ORDERED that Plaintiff/Counterclaim Defendant Antimo, LLC’s 
Motion To Strike Or Dismiss Defendant Reich ’s Counterclaim For Breach Of Contract & To 
Strike His Third & Fourth Affirmative Defenses (Doc. #81) filed April 8, 2026 is OVERRULED. 
Dated this 9th day of June, 2026 at Kansas City, Kansas. 

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/s/ Kathryn H. Vratil 
KATHRYN H. VRATIL 
United States District Judge 
 

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