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Thomas Botell, Jennifer Botell, Individually, and B.B. and K.B v. United States of America

March 26, 2012


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Plaintiffs move under Federal Rule of Civil Procedure ("Rule") 12(f) for an order striking Defendant's twenty-one affirmative defenses. Plaintiffs argue "Defendant's affirmative defenses are insufficient, redundant, immaterial, or impertinent" since "each . . . affirmative defense[] fails to allege . . . facts and thus fails to put Plaintiffs on fair notice." (Pls.' Mot. 5:25-26, 6:11-12.) Alternatively, Plaintiffs argue Defendant's first, second, sixth through tenth, twelfth, thirteenth, and fifteenth through twenty-first defenses should be stricken since they are not affirmative defenses. Id. 6:9-10. Defendant counters its affirmative defenses, with the exception of its sixteenth and eighteenth affirmative defenses which it voluntarily withdraws, "are appropriately pled, and should not be stricken." (Def.'s Opp'n 4:15-16.)


"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Motions to strike are disfavored and infrequently granted." Bassett v. Ruggles, 2009 WL 2982895, at *24 (E.D. Cal. Feb. 17, 2009) (internal quotation marks omitted). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Sidney--Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). "'Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (internal citation and quotations omitted), rev'd on other grounds, 510 U.S. 517 (1994). "'Impertinent' matter consists of statements that do not pertain, and are not necessary, to the issues in question." Id. (internal citation and quotations omitted).

"The procedural sufficiency of a pleaded claim or defense in federal court is governed by the federal rules, even though the defense relied on may be a state defense." Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979); see also Taylor v. United States, 821 F.2d 1428, 1432 (9th Cir. 1987) ("Although state substantive law governs in suits brought under the [Federal Tort Claims Act ('FTCA')], the Federal Rules of Civil Procedure determine the manner and time in which defenses may be raised."). Rule 8(c) "governs the pleading of an affirmative defense." J&J Sports Prods., Inc. v. Gidha, No. CIV-S-10-2509, 2012 WL 537494, at *2 (E.D. Cal. Feb. 17, 2012).

The parties dispute, however, which pleading standard applies to affirmative defenses. Plaintiffs argue the heightened pleading standard enumerated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), governs affirmative defenses. (Pls.' Mot. 4:13-17.) Defendant counters, arguing "[c]urrent Ninth Circuit law applies the pleading standards set forth in Conley v. Gibson, 355 U.S. 41 (1957)." (Def.'s Opp'n 5:1-2.) Under this lower pleading standard, "[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." Wyshak, 607 F.2d at 827.

"[T]he Ninth Circuit has yet to apply Twombly and Iqbal to affirmative defenses, and to date, no circuit court has issued a decision regarding the applicability of the heightened pleading standard to affirmative defenses." J&J Sports Prods., Inc., 2012 WL 537494, at *2. "District courts in the Ninth Circuit are split on the issue." Id. Because of what is at issue in this motion, the parties' dispute concerning the applicable standard need not be resolved since even if the lesser pleading standard applies, the motion will be granted and denied in part for the reasons stated below.


i. First Affirmative Defense

Plaintiffs argue Defendant's first affirmative defense, in which Defendant alleges Plaintiffs failed to state a claim upon which relief may be granted, is not an affirmative defense. (Pls.' Mot. 6:14-22.) Defendant counters, arguing "Form 30, at paragraph 4, sets out the approved form for assertion of the affirmative defense of failure to state a claim." (Def.'s Opp'n 5:26-6:2.)

"[F]ailure to state a claim is not a proper affirmative defense but, rather, asserts a defect in the plaintiff's prima facie case." G&G Closed Circuit Events, LLC v. Nguyen, No. 5:10-CV-05718, 2011 WL 6293922, at *2 (N.D. Cal. Dec. 15, 2011); see also J&J Sports Prods., Inc., 2012 WL 537494, at *3 ("[D]efendants' first affirmative defense[, failure to state a claim,] challenges plaintiff's prima facie case and therefore is not properly raised as an affirmative defense."). Further, Form 30 includes failure to state a claim as a defense rather than an affirmative defense. Fed. R. Civ. P. app. Form 30. Therefore, Plaintiff's motion to strike Defendant's first affirmative defense is GRANTED.

ii. Second and Third Affirmative Defenses

Plaintiffs argue Defendant's second and third affirmative defenses, in which Defendant alleges lack of subject matter jurisdiction and the discretionary function exception to liability under the FTCA, should be stricken since Defendant fails to plead any facts which support them. (Pls.' Mot. 6:24-7:17.) Further, Plaintiffs argue lack of subject matter jurisdiction is not an affirmative defense. Id. 6:25-27. Defendant counters its lack of subject matter jurisdiction affirmative defense is "based on the discretionary function defense . . . raised in its motion to dismiss[; and that] Plaintiffs' assertion that they do not have fair notice of this defense is disingenuous, in light of the extensive briefing of both sides prior to the filing of the Answer herein." (Def.'s Opp'n 6:15-18.)

In light of Defendant's response, Plaintiff's motion to strike Defendant's second affirmative defense is GRANTED since it is duplicative of Defendant's third affirmative defense. Further, it is evident that Defendant's third affirmative defense is involved in this case since Defendant's factual position concerning this defense was made known to Plaintiffs in Defendant's ...

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