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Sara Lowry v. City of San Diego

April 5, 2012

SARA LOWRY,
PLAINTIFF,
v.
CITY OF SAN DIEGO, DEFENDANT.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES [Doc. No. 41]

On November 11, 2011, Defendant City of San Diego (the "City") answered Plaintiff Sarah Lowry's First Amended Complaint ("FAC") and asserted twenty-four affirmative defenses. [Doc. No. 40.] Plaintiff moves to strike eight of the affirmative defenses under the Federal Rule of Civil Procedure 12(f). [Doc. 41-1.] Defendant opposes the motion [Doc. No. 42], and Plaintiff has filed a reply. [Doc. No. 43.] For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion.

B ACKGROUND

Plaintiff Sara Lowry initiated this action against the City after a San Diego Police Department ("SDPD") police dog bit her on the face. On February 11, 2010, Plaintiff was allegedly sleeping on the couch in her unlocked office suite with the permission of her employer. [FAC, Doc. No. 36 ¶ 6.] While she slept, three members of the SDPD deployed a police dog, which bit her face. [Id.]

Plaintiff primarily contends the City has "adopted policies, procedures, and customs governing the use of force and use of public service dogs in all facets of police operations including, but not limited to, investigation, apprehension, and protection." [Id. ¶ 5.] Plaintiff asserts these policies and procedures, as well as the actions and omissions of Sergeant Bill Nulton and Officers Mike Fish and David Zelenka, proximately caused her injuries. [Id. ¶¶ 5, 7.] Accordingly, Plaintiff filed this action under section 1983 of the Federal Civil Rights Act alleging Defendant used excessive force during an unreasonable search and seizure.

D ISCUSSION

I. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(f), a court "may strike from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A motion to strike functions "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Kohler v. Islands Rest., LP, 2012 U.S. Dist. LEXIS 24224, at *4 (S.D. Cal. Feb. 16, 2012) (quoting Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)).

"To strike an affirmative defense, the moving party must convince the court that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no circumstances could the defense succeed. The grounds for the motion must appear on the face of the pleading under attack or from a matter which the court may judicially notice." SEC v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995). "[A] motion to strike which alleges the legal insufficiency of an affirmative defense will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Barnes v. AT&T Pens. Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010) (citations and internal quotations omitted). If a court strikes an affirmative defense, leave to amend should be freely granted, as long as it does not prejudice the moving party. Kohler v. Bed Bath & Beyond of Cal., LLC, 2012 U.S. Dist. LEXIS 16048, at *2 (C.D. Cal. Feb. 8, 2012) (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979)).

Courts generally regard motions to strike "with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic." Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Indeed, a motion to strike "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (quoting Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991)).

II. ANALYSIS

Plaintiff alleges a civil rights claim against the City based on the actions and omissions of three SDPD members. Specifically, Plaintiff asserts the SDPD members used excessive force during an improper search and seizure when they deployed a police dog against her while she slept at her place of employment. [FAC ¶6.] The City answered Plaintiff's FAC and asserted twenty-four affirmative defenses. [Doc. No. 40.] In response, Plaintiff moves to strike eight of them. [Doc. No. 41.]

(A) Second Affirmative Defense - Good Faith

The City agrees to strike its good faith affirmative defense. Accordingly, the Court GRANTS Plaintiff's ...


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