The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE [ECF No. 249]
Plaintiff, a state prisoner proceeding pro se, filed a motion to strike portions of Defendants' Amended Answer to Plaintiff's Second Amended Complaint ("SAC") under Federal Rule of Civil Procedure 12(f). Additionally, Plaintiff seeks to strike affirmative defenses twelve, thirteen, fifteen, and sixteen from Defendants' Amended Answer. (ECF No. 249 at 1-2.) For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to strike.
On August 2, 2006, Plaintiff Francisco Uriarte filed a complaint alleging he was crushed between a metal cell door and the metal doorframe by a correctional officer at the Richard J. Donovan Correctional Facility. (ECF No. 146 at 9.) In his complaint, Plaintiff asserts three causes of action under the Civil Rights Act 42 U.S.C. § 1983 and one cause of action under the Product Liability Act. (ECF No. 146 at 58-61.)
On November 9, 2011, Defendants answered Plaintiff's SAC and asserted seventeen affirmative defenses. (ECF No. 224.) On January 3, 2012, Plaintiff filed a motion to strike portions of Defendants' answer and to strike affirmative defenses twelve, thirteen, fifteen, and sixteen in their entirety. (ECF No. 249 at 1, 2.) Defendants did not file an opposition to Plaintiff's motion to strike.
The Court Should Strike Defendant's Waiver of Claim Argument Because it is Redundant and Impertinent.
Plaintiff requests the Court strike Defendant's argument that Plaintiff waived his policy-driven liability claim as redundant and impertinent. (ECF No. 249 at 9.) Specifically, Plaintiff seeks to strike the following language from Defendants' answer:
Defendants further note that Plaintiff did not re-allege his claim founded on policy-driven liability in the SAC (see SAC at 49-53, "Claims for Relief," and compare FAC at 49, Claim I). By not re- alleging this claim, Plaintiff has waived it. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (ECF No. 224 at 8, 90, 93.)
Plaintiff asserts Defendants' response in paragraphs 8, 90, and 93 is erroneous because Plaintiff's policy-driven liability claim has not been waived. (ECF No. 249 at 9.) Plaintiff contends he re-alleged his policy-driven liability claim in the "Statement of Claims" section of the SAC. (ECF No. 249 at 9.) Moreover, Plaintiff asserts he originally alleged his policy-driven liability claim under "Claim 1" of the "Claims for Relief" section of the First Amended Complaint ("FAC"). (ECF No. 249 at 9.) "Claim 1" of the FAC however, was directed at Defendants Schwarzenegger, Tilton, Hickman, Woodford and Szekreny who were dismissed from the suit. (ECF No. 249 at 9.) Plaintiff reasoned re-alleging his policy-driven liability claim under this section would have been futile as the Defendants for whom the claim was directed towards had been dismissed. (ECF No. 249 at 9.) Plaintiff therefore re-alleged his policy-driven liability claim towards Defendants Hernandez, Contreras, Dresbach, Oliveros, Lozano, and Cavendar in the "Statement of Claims" section of the SAC. (ECF No. 249 at 9.) Accordingly, Plaintiff asserts his policy-driven liability claim is not waived and thus Defendants' waiver argument should be stricken as "redundant or impertinent" pursuant to Rule 12(f). (ECF No. 249 at 9.)
The Court Should Strike Defendants' Twelfth, Thirteenth, Fifteenth, and Sixteenth Affirmative Responses as Insufficient.
Plaintiff requests the Court strike Defendants' twelfth, thirteenth, fifteenth, and sixteenth affirmative defenses as insufficient. (ECF No. 249 at 2.) Plaintiff contends the following affirmative defenses should be stricken because there are no facts in the SAC to support Defendants' affirmative defenses. (ECF No. 249 at 11-12.)
Twelfth Affirmative Defense: Plaintiff's Conduct Contributed to His Injuries All happenings, events, damages, and injuries referred to in the SAC were proximately caused and contributed by Plaintiff's own conduct in that he failed to exercise ordinary care at the alleged times and places, or by his own ...