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Vogel v. Huntington Oaks Delaware Partners, LLC

United States District Court, Ninth Circuit

July 2, 2013

MARTIN VOGEL, Plaintiff,


OTIS D. WRIGHT, II, District Judge.


Plaintiff Martin Vogel's Complaint alleges that Defendant Huntington Oaks Delaware Partners, LLC failed to maintain accessible facilities in violation of state and federal laws, including the Americans with Disabilities Act. In response, Huntington submitted its Answer, which included the following 26 affirmative defenses: (1) failure to state a claim; (2) no damage or injury; (3) damage result of conduct of others; (4) recovery barred by conduct of complaining party; (5) recovery barred by conduct of complaining party or third party; (6) failure to mitigate; (7) unclean hands; (8) laches; (9) waiver; (10) estoppel; (11) duties discharged; (12) assumption of risk; (13) comparative negligence; (14) unconscionability; (15) force majeure; (16) impossibility; (17) no causal connection; (18) justification or privilege; (19) drive-by/serial plaintiff-lack of standing; (20) substantial compliance; (21) undue hardship; (22) not readily achievable; (23) demands would fundamentally alter business; (24) direct threat; (25) drive-by/serial plaintiff-lack of standing; and (26) additional defenses.

Vogel now moves to strike Huntington's affirmative defenses under Federal Rule of Civil Procedure 12(f). (ECF No. 11.) For the following reasons, Vogel's Motion is GRANTED.[1]


Under Federal Rule of Civil Procedure 12(f), a court has discretion to strike a pleading or portions of the pleading. Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 243 (9th Cir. 1990). Rule 12(f) allows the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Impertinent allegations are those that are not relevant to issues involved in the action. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993). Immaterial matters are those with no essential or important relationship to the pleaded claims or defenses. Id.

An affirmative defense may be insufficient as a matter of pleading or as a matter of law. It may be insufficiently pleaded where it fails to provide the plaintiff with fair notice of the defense asserted. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979). It also may be insufficient as a matter of law where "there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed." Ganley v. Cnty. of San Mateo, No. C06-3923 THE, 2007 U.S. Dist. LEXIS 26467, at *3 (N.D. Cal. Mar. 22, 2007). And because the purpose of pleading an affirmative defense is simply to give fair notice to the plaintiff of the defense being asserted, leave to amend should be freely granted in the absence of prejudice to the opposing party. Wyshak, 607 F.2d at 826-27.


The parties dispute whether Wyshak 's fair-notice requirement still controls the pleading of affirmative defenses in light of Twombly and Iqbal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). In Twombly, the Supreme Court held that in order to survive a motion to dismiss, a complaint must contain enough facts to state a claim that is plausible on its face. 550 U.S. at 570. Vogel argues that Twombly 's plausibility standard extends to all pleadings. (Mot. 2.) Huntington counters that affirmative defenses need only comply with Wyshak 's fair-notice requirement. (Opp'n 4-5.)

Neither the Supreme Court nor the Ninth Circuit has expressly held that the plausibility requirement applies to affirmative defenses, and the issue has divided the district courts of this Circuit. The majority of district courts in this Circuit, including the entire Northern District and this Court, has consistently applied Twombly and Iqbal to both claims and affirmative defenses. Powertech Tech., Inc. v. Tessera, Inc., No. C 10-945 CW, 2012 U.S. Dist. LEXIS 68711, at *11 (N.D. Cal. May 16, 2012) (collecting cases and noting uniformity in Northern District dispositions); Gonzalez v. Heritage P. Fin., LLC, No. 2:12-cv-01816-ODW (JCGx), 2012 U.S. Dist. LEXIS 112195, at *4 (C.D. Cal. Aug. 08, 2012).

Framing the issue as a choice between Twombly 's plausibility standard and Wyshak 's fair-notice standard is misleading, because Twombly merely revised the fair-notice standard on which Wyshak is based. In Wyshak, the Ninth Circuit adopted the prevailing fair-notice standard for pleading complaints and applied it to affirmative defenses. Wyshak, 607 F.2d at 827 (citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). At the time, fair notice was defined by Conley v. Gibson , which held that dismissal was warranted only if it appeared clear to the court that there were "no set of facts" that would entitle the plaintiff to relief. 355 U.S. at 45-46. But Conley is no longer good law. Twombly and Iqbal soundly rejected the "no set of facts" standard by holding that fair notice requires the pleading of factual matter that creates a plausible right to relief. Twombly, 550 U.S. at 563, 570. Labels, conclusions, or formulaic recitals of the elements of a cause of action do not suffice. Iqbal, 556 U.S. at 678.

As a result, Twombly "changed the legal foundation underlying" Wyshak, and Twombly 's plausibility requirement should apply to affirmative defenses just as Conley 's "no set of facts" standard did before Twombly was decided. Powertech, 2012 U.S. Dist. LEXIS 68711, at *12. In reaching this decision, the Court recognizes that nowhere in the text of Twombly, Iqbal, nor Conley does the Supreme Court discuss affirmative defenses. But simply because the issue was not before the Supreme Court does not mean Twombly 's logic applies with any less force to affirmative defenses.

As courts have observed, there are significant parallels between Rule 8's requirement for pleading claims in a complaint and affirmative defenses in an answer. Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1172 (N.D. Cal. 2010); compare Fed.R.Civ.P. 8(a) (requiring a "short and plain statement of the claim showing that the pleader is entitled to relief"), with Fed.R.Civ.P. 8(b) (requiring a defendant to state in "short and plain terms its defenses to each claim asserted against it"). Because a defendant bears the burden of proof on its affirmative defense just as a plaintiff does on its claim, Twombly 's conception of fair notice would seem to apply equally to both. Powertech, 2012 U.S. Dist. LEXIS 68711, at *13.

Huntington proffers four arguments for continuing to applying Conley 's retired fair-notice standard to affirmative defenses. First, Huntington argues that there are significant linguistic and procedural differences between the rules for complaints and answers that compel applying a lower standard to affirmative defenses. (Opp'n 6.) Second, it argues that applying Twombly and Iqbal to affirmative defenses places an unfair burden on defendants, who have a mere 21 days to formulate a response to a complaint. ( Id. at 7.) Third, it points to the absence of appellate authority ...

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