govinfo:USCOURTS-mdd-1_25-cv-01327-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
MEMORANDUM AND ORDER 
Pending before the court is Claimant/Counterclaim Defendant Robin Blumgart’s 
(“Claimant”) Motion to Strike or, in the Alternative, Motion to Dismiss Petitioners’ Counterclaim 
at ECF No. 29 (the “Motion”). The court has reviewed all papers; no hearing is necessary. Local 
Rule 105.6 (D. Md. 2025). 
 
 
 
IN THE MATTER OF THE PETITION 
OF DORCHESTER STREET JET SKIS, 
INC., MAHDI NASHI SAMER SBIH, SAL 
RAMADAN, AND AZEZEH RAMADAN, 
as Owner(s) or Owner(s) Pro Hac Vice of a 
2024 Seadoo Personal Watercraft vessel for 
Exoneration from or Limitation of Liability 
 
 
ROBIN BLUMGART, 
 
Claimant/Counter-Defendant, 
 
v. 
 
DORCHESTER STREET JET SKIS, INC., 
et al., 
 
Petitioners/Third Party Plaintiffs/ 
Counter-Plaintiffs, 
 
v. 
 
UNDER THE BRIDGE WATERSPORTS, 
LLC, 
 
Third-Party Defendant. 

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I. Background 
This Exoneration from or Limitation of Liability action arises from a n accident involving 
personal watercraft vessels (commonly referred to as “jet skis”) that occurred in navigable waters 
in the vicinity of Sinepuxent Bay, Berlin, Maryland. (ECF No. 1 ¶¶ 9–12.) On August 12, 2024, 
while in the navigable waters, a 2024 Seadoo Personal Watercraft vessel (the “Seadoo Vessel”), 
operated by John Cristopher Vallorosi, “unexpectedly came into contact with a second personal 
watercraft vehicle operated by [Claimant].” Id. ¶ 11. Specifically, Claimant was operating a 2024 
BRP 25RA00 Personal Watercraft vessel (the “BRP Vessel”) that she (or someone on her behalf) 
rented from Under the Bridge Watersports, LLC. (ECF No. 27 ¶ 16.) On or about October 18, 
2024, Claimant filed a personal injury action in the Circuit Court for Worchester County, 
Maryland, against Dorchester Street Jet Skis, Inc., and Mahdi Nashi Samer Sbih, Dorchester Street 
Jet Ski and Boat Rentals, OC Downtown Adventures on Dorchester Street, and John Christopher 
Vallorosi, Case No. C-23-CV-24-000226. (ECF No. 1 ¶ 13.) 
On April 24, 2025, Petitioners/Third Party Plaintiffs/Counter-Plaintiffs Dorchester Street 
Jet Skis, Inc., Mahdi Nashi Samer Sbih, Sal Ramadan, and Azezeh Ramadan (“Petitioners”) 
initiated the instant action pursuant to 46 U.S.C. §§ 30501, et seq., and Rule F of the Supplemental 
Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil 
Procedure. (ECF No. 1 ¶ 1.) The filing of the instant action stayed Claimant’s state court personal 
injury action. (ECF No. 29 at p. 2.) On June 2, 2025, Claimant filed her claim in the instant 
action. (ECF No. 17.) The court then issued a scheduling order. (ECF No. 19.) On request of 
the parties, the schedul ing order was amended on September 4, 2025. (ECF No. 22.) Per the 
Amended Scheduling Order, the deadline for parties to move for joinder of additional parties or 
amendment of pleadings was January 6, 2026. Id. On February 3, 2026, Petitioners filed a Third 

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Party Complaint (ECF No. 26) against Under the Bridge Watersports, LLC , for indemnity and 
contribution, and a Counterclaim (ECF No. 27) against Claimant for indemnification and 
contribution. Claimant filed the instant Motion thereafter. (ECF No. 29.) Less than a week after 
Claimant filed the Motion, Petitioners moved, with Claimant’s consent, to amend the scheduling 
order, to set a deadline of May 1, 2026, for joinder of additional parties and amendment of the 
pleadings. (ECF No. 30.) The court granted that motion the next day. (ECF No. 31.) 
II. Legal Standards 
A. Rule 12(f): Motion to Strike 
Rule 12(f) of the Federal Rules of Civil Procedure authorizes the court to order stricken 
from any pleading “any redundant, immaterial, impertinent, or scandalous matter.” F ED. R. CIV. 
P. 12(f). At issue here, “a counterclaim, or a portion thereof, may be stricken because it contains 
redundant and immaterial matter . . . .” 5C WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE 
§ 1382 (3d ed. 2026). “Rule 12(f) motions are disfavored and ‘generally will be not granted [for 
immateriality] unless the challenged allegations have no possible or logical connection to the 
subject matter of the controversy and may cause some form of significant prejudice to a party.’” 
Fitchett v. Spartech, LLC, 634 F. Supp. 3d 241, 243 (D. Md. 2022) (quoting Gilman & Bedigian, 
LLC v. Sackett , 337 F.R.D. 113, 117 (D. Md. 2020)). “Nevertheless, motions to strike will be 
granted when the movant meets it s burden of proving that the challenged material is immaterial 
and prejudicial.” Id. (citing Chapman v. Duke Energy Carolinas, LLC, Civ. No. 3:09-37RJC, 2009 
WL 1652463, at *3 (W.D.N.C. June 11, 2009)). 
B. Rule 12(b)(6): Motion to Dismiss for Failure to State a Claim 
“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 
sufficiency of the complaint.” In re Birmingham , 846 F.3d 88, 92 (4th Cir. 2017), as amended 

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(Jan. 20, 2017) (quoting Papasan v. Allain, 478 U.S. 265, 283 (1986)). To survive a motion to 
dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, 
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 
(quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “A court decides whether 
this standard is met by separating the legal conclusions from the factual allegations, assuming the 
truth of only the factual allegations, and then determining whether those allegations allow the court 
to reasonably infer that ‘the defendant is liable for the misconduct alleged.’” A Soc’y Without A 
Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (citing Iqbal, 556 U.S. at 678). 
A plaintiff’s “factual allegations must be enough to raise a right to relief above the 
speculative level, thereby nudging its claims across the line from conceivable to plausible.” Vitol, 
S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (citation modified) (quoting 
Twombly, 550 U.S. at 555, 570). The plausibility requirement is not “a probability requirement 
but rather a mandate that a plaintiff ‘demonstrate more than a sheer possibility that a defendant has 
acted unlawfully.” In re Birm ingham, 846 F.3d at 92 (quoting Francis v. Giacomelli , 588 F.3d 
186, 193 (4th Cir. 2009)). Reliance on “labels and conclusions” and “a formulaic recitation of the 
elements of a cause of action” are insufficient. Twombly, 550 U.S. at 555 
III. Analysis 
As an initial matter, the court agrees with Petitioners’ unchallenged contention that 
Claimant’s consent to extend the operative deadline she claims was offended renders moot her 
argument that the Counterclaim should be struck as untimely. Even if Petitioners’ Counterclaim 
was initially untimely, as Claimant contends,
1 the court granted the consent motion to extend the 
 
1 Petitioners also note in a footnote that they “dispute that the [C]ounterclaim is governed by the deadline to move for 
joinder of parties or amend pleadings as it neither adds a new party nor does it amend an existing pleading.” (ECF 
No. 36 at p. 4 n.2.) Petitioners do not advance argument on this point, and instead focus on the mootness argument. 
Id. The court constrains it analysis accordingly. 

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relevant deadline. (ECF Nos. 30, 31.) As such, by the proposed dates of the parties, Petitioners’ 
Counterclaim filed prior to May 1, 2026, is timely. (ECF No. 31.) Against this backdrop, and in 
view of the fact that motions to strike (and judicial striking) are disfavored, see Fitchett, 634 F. 
Supp. 3d at 243, supra, the court is not satisfied that Claimant has met her burden to show that the 
Counterclaim should be struck as untimely, especially when considering her failure to respond to 
Petitioners’ opposition, thus conceding the point. See Stenlund v. Marriott Int’l, Inc., 172 F. Supp. 
3d 874, 887 (D. Md. 2016) (“In failing to respond to [defendant’s] argument, Plaintiff concedes 
the point.”); Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) 
(explaining that a plaintiff “abandon[s]” her claim where she failed to respond to argument). The 
court will therefore deny the Motion on this ground.
 
The court turns to Claimant’s remaining argument—that Petitioners’ Counterclaim is 
actually an affirmative defense for which no relief may be granted. While an affirmative defense 
is “[a] defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s . . . claim, 
even if all the allegations in the complaint are true,” Affirmative Defense , BLACK’S LAW 
DICTIONARY (12th ed. 2024), a counterclaim is “[a] claim for relief asserted against an opposing 
party after an original claim has been made,” such as “a defendant’s claim in opposition to or as a 
setoff against the plaintiff’s claim,” Counterclaim, B
LACK’S LAW DICTIONARY (12th ed. 2024). 
See Ross v. Indep. Ord. of Foresters, No. 4:23-CV-64, 2024 WL 2294876, at *2 (E.D. Va. Feb. 
12, 2024) (discussing same); XL Specialty Ins. Co. v. Truland, No. 1:14CV1058 JCC/JFA, 2015 
WL 925595, at *3 (E.D. Va. Mar. 3, 2015) (discussing same). The material distinction, for this 
court’s purposes, turns on whether the counterclaim “seeks affirmative relief,” or, instead, like an 
affirmative defense “defeats the plaintiff’s cause of action by denial or confession and avoidance.” 
XL Specialty Ins., 2015 WL 925595, at *3 (quoting 61A Am. Jr. 2d Pleading § 276). 

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Pursuant to Federal Rule of Civil Procedure 8(c)(2): “If a party mistakenly designates a 
defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat 
the pleading as though it were correctly designated, and may impose terms for doing so.” FED. R. 
CIV. P. 8(c)(2). Where a counterclaim “operate[s] more appropriately as an affirmative defense,” 
the court may construe it as such. Ross v. Indep. Ord. of Foresters , No. 4:23-CV-64, 2024 WL 
2294876, at *3 (E.D. Va. Feb. 12, 2024) (citing CMF Virginia Land, L.P. v. Brinson, 806 F. Supp. 
90, 93 (E.D. Va. 1992)); see 5 W
RIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 1382 (4th 
ed. 2026) (noting that “there are a significant number of cases to the effect that allegations that 
actually constitute a defense may be treated as such even though it is erroneously denominated as 
a counterclaim” and that the “misdesignation provision in Rule 8(c) reflects the conscious attempt 
by the drafters to ignore pleading technicalities” and “promotes the liberality with which courts 
generally construe pleadings under the federal rules”). 
In this court’s view, this circumstance presents a close call. While much of Petitioners’ 
Counterclaim, as Claimant notes, reflects an affirmative defense posture, see ECF No. 27 ¶¶ 24–
26, pp. 5–6, Petitioners also seek affirmative relief (albeit in a more limited fashion), asserting: 
27. Accordingly, to the extent that Counter -Plaintiffs may be held 
liable the claimant, Robin Blumgart, for loss or damage arising from 
the collision between the Seadoo Watercraft and the BRP 
Watercraft, Counter -Plaintiffs are entitled to full and complete 
indemnity or contribution from Counter -Defendant, Robin 
Blumgart, for any amounts that Counter -Plaintiffs may be required 
to pay, plus attorney’s fees, costs and interests incurred in the 
defense of this action. 
 
Id. ¶ 27. And requesting: 
That the Counter -Plaintiffs be granted indemnification and/or 
contribution and/or allocated a percentage of fault for any settlement 
or judgment that is rendered against them in favor of Robin 
Blumgart. 
 

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That Counter -Plaintiffs be granted costs, expenses and attorney’s 
fees incurred in the defense of this action . . . . 
 
Id. at p. 6. 
 Thus, while Claimant’s argument is well-taken, as much of the Counterclaim sounds in an 
affirmative defense, the Counterclaim also seeks affirmative relief outside the scope of an 
affirmative defense. And further, after Petitioners raised this in response, Claimant failed to 
respond, once again conceding the point. See Stenlund, 172 F. Supp. 3d at 887 and Ferdinand-
Davenport, 742 F. Supp. 2d at 777, supra. Based on the foregoing, Claimant has failed to meet 
her burden to show that dismissal (or redesignation per Rule 8(c)(2)) of Petitioners’ Counterclaim 
is warranted upon the circumstances here. 
IV. Conclusion and Order 
Accordingly, it is this 3rd day of June 2026, 
ORDERED that the Motion (ECF No. 29) shall be, and is hereby, DENIED. 
 
 
 /S/ 
 
 Julie R. Rubin 
 United States District Judge 

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