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Jane Roe v. City of San Diego

March 5, 2013


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court is Plaintiff's motion to strike affirmative defenses from the answer filed on behalf of Defendants Police Chief William Lansdowne, former police officer Kevin Friedman (collectively, the "Individual Defendants"), and the City of San Diego. Defendants oppose.

The Court decides the matter on the papers submitted and without oral argument. See CIV. L. R. 7.1(d.1). For the reasons discussed below, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiff's motion to strike [Doc. 30].


On January 19, 2012, Plaintiff Jane Roe initiated this action against Police Chief William Lansdowne, former Police Officers Anthony Arevalos and Kevin Friedman, and the City of San Diego. Plaintiff asserts three causes of action under Title 42 U.S.C. § 1983: (1) violation of civil rights; (2) unlawful custom and practice; and (3) violation of civil rights due to city-wide policy. (See First Amended Compl. ("FAC") [Doc. 8].)

According to the FAC, Officer Arevelos sexually assaulted Plaintiff while he was on duty. (FAC, ¶ 8.) Plaintiff also alleges that Officer Arevalos had a history of acting inappropriately towards women while on duty, and that Chief Lansdowne and Arevelos' supervisor, Officer Friedman, were aware of the misconduct but did nothing to stop it. (Id., ¶¶ 14, 16.) Plaintiff further alleges that the San Diego Police Department, under the City's authority, routinely fails to discipline abusive and dishonest police officers. (Id., ¶ 29--30.)

On July 27, 2012, the City, Chief Lansdowne and Officer Friedman answered the FAC and asserted twenty-six affirmative defenses. (See Answer, [Doc. 27].) Plaintiff now seeks to strike all of the affirmative defenses or, in the alternative, to require these Defendants to re-plead any insufficiently pled affirmative defenses under the standard set forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 1937 (2009). In opposition, Defendants agree to strike seven of their affirmative defenses, but argue that the Twombly / Iqbal standard should not be applied to affirmative defenses.*fn1 (Opp. [Doc. 36], pp. 2, 4.)


Federal Rule of Civil Procedure 12(f) provides that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Id. "[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). However, 12(f) motions are "generally regarded 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). Unless it would prejudice the opposing party, courts freely grant leave to amend stricken pleadings. Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2).

An affirmative defense may be insufficient as a matter of pleading or as a matter of law. Sec. People, Inc. v. Classic Woodworking, LLC, 2005 WL 645592, at *2 (N.D. Cal. 2005). "The key to determining the sufficiency of pleading an affirmative defense is whether it gives the plaintiff fair notice of the defense." Wyshack, 607 F.2d at 827 (citing Conley v. Gibson, 355 U.S. 41, 47--48 (1957)) (emphasis added); Simmons v. Navajo, 609 F.3d 1011, 1023 (9th Cir. 2010); Schutte & Koerting, Inc. v. Swett & Crawford, 298 Fed. Appx. 613, 615 (9th Cir. 2008). Fair notice generally requires that the defendant state the nature and grounds for the affirmative defense. See Conley, 355 U.S. at 47. The defendant must articulate the affirmative defense clearly enough that the plaintiff is "not a victim of unfair surprise." Bd. of Trustees of San Diego Elec. Pension Trust v. Bigley Elec., Inc., 2007 WL 2070355, at *2 (S.D. Cal. July 23, 2007) (citing Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir.1999). It does not, however, require a detailed statement of facts. Conley, 355 U.S. at 47-- 48. Furthermore, an affirmative defense is legally insufficient only if it clearly lacks merit "under any set of facts the defendant might allege." McArdle v. AT&T Mobility, LLC, 657 F. Supp. 1140, 1149--50 (N.D. Cal. 2009).

In addition to these rules, Plaintiff urges the Court to evaluate Defendants' affirmative defenses under the Twombly / Iqbal standard. Defendants oppose this argument. District courts are split over this issue.*fn2

As an initial matter, this Court has twice evaluated this issue and refused to extend the more stringent standard to affirmative defenses for several reasons.*fn3 Most

significantly, the Ninth Circuit has continued to recognize the "fair notice" standard of affirmative defense pleading even after Twombly and Iqbal. See Simmons, 609 F.3d at 1023; Schutte & Koerting, 298 Fed. Appx. at 615. This strongly suggests that the Ninth Circuit does not believe the more stringent Twombly / Iqbal standard should be applied to affirmative defenses.

Additionally, the Supreme Court's analysis in Twombly and Iqbal is limited to pleadings under Federal Rule of Civil Procedure 8(a)(2). See 129 U.S. at 1950; 550 U.S. at 555. Rule 8(a)(2) requires that the party stating a claim for relief provide "a short and plainstatement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). In contrast, Rule 8(c) -- applicable to affirmative defenses -- only requires a responding party to "affirmatively state" its defenses. Fed. R. Civ. P. 8(c) (emphasis added).

Furthermore, the Supreme Court's discussion in Iqbal suggests that the distinction in language between Rule 8(a)(2) and 8(c) is important. See 129 S. Ct. at 1950. Factual plausibility-which is the key difference between Twombly / Iqbal pleading and "fair notice" pleading-is particularly suited to claim pleading because Rule 8(a)(2) requires that the party "show[ ]" that it is entitled to relief. Id. ("But where the well-pleaded facts do not permit the court to infer more than mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'") (quoting Fed. R. Civ. P. 8(a)(2)). Stating an affirmative defense under Rule 8(c), however, does not require the pleader to "show" entitlement to its defense.*fn4 See Fed. R. Civ. P. 8(c). Applying the same pleading standard to claims and affirmative defenses, despite this clear distinction in the rules' language, would run counter to the Supreme Court's warning in Twombly that legislative action, not "judicial interpretation," is necessary to "broaden the scope" of specific federal pleading standards. See 550 U.S. at 569 n. 14.

District Courts refusing to apply Twombly / Iqbal, and instead applying the "fair notice" standard, include: J&J Sports Prods., Inc. v. Scace, 2011 WL 2132723, at *1 (S.D. Cal. 2011); Bayer CropScience AG v. Dow AgroSciences LLC, 2011 WL 6934557, at *1--2 (D. Del. Dec. 30, 2011); Joe Hand Promotions, Inc. v. Estradda, 2011 WL 2413257, at *5 (E.D. Cal. 2011); Holdbrook v. SAIA Motor Freight Line, LLC, 2010 WL 865380, at *2 (D. Colo. 2010); Bartronics, Inc. v. Power-One, Inc., 245 F.R.D. 532, 537 n.5 (S.D. Ala. 2007).

Finally, the Court is also persuaded by the District of Colorado's recognized distinction between the time plaintiff has to compose a complaint versus the time a defendant has to answer it. See Holdbrook, 2010 WL 865380, at *2. As the court explained, "it is reasonable to impose stricter pleading requirements on a plaintiff who has significantly more time to develop factual support for his claims than a defendant who is only given [21] days to respond to a complaint and assert its affirmative defenses." Id.; see Fed. R. Civ. P. 12(a).

For these reasons, the Court will review the sufficiency of Defendants' affirmative defenses under the ...

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