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Dodson v. Csk Auto, Inc.

United States District Court, Ninth Circuit

July 29, 2013

Robert Dodson, Plaintiff,
v.
CSK Auto, Inc. dba O'Reilly Auto Parts #3506, Defendant.[*]

ORDER GRANTING MOTION TO STRIKE

GARLAND E. BURRELL, Jr., Senior District Judge.

Plaintiff seeks an order striking each of Defendant's ten affirmative defenses under Federal Rule of Civil Procedure ("Rule") 12(f). (Pl.'s Mot. to Strike Affirmative Defenses ("Pl.'s Mot."), ECF No. 15.) Defendant has not responded to the motion.

I. LEGAL STANDARD

Rule 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Since interpretation of the Rule begins with its plain meaning, a motion to strike will not be granted unless the matter to be stricken is "(1) an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or (5) scandalous." Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973-74 (9th Cir. 2010). An affirmative defense may constitute "an insufficient defense" under Rule 12(f) either as a matter of law or as a matter of pleading. Kohler v. Islands Rests., LP , 280 F.R.D. 560, 564 (S.D. Cal. 2012). An affirmative defense is insufficient as a matter of law if it clearly fails "under any set of facts the defendant might allege." McArdle v. AT&T Mobility LLC , 657 F.Supp.2d 1140, 1150 (N.D. Cal. 2009), rev'd on other grounds, 474 Fed.App'x 515 (9th Cir. 2012); accord Dodson v. Strategic Rests. Acquisition Co. II, LLC, NO. CIV. S-13-0402 LKK/EFB, 2013 WL 3120322, at *7 (E.D. Cal. 2013). An affirmative defense is insufficient as a matter of pleading if it fails to meet the applicable pleading standard. However, neither the Ninth Circuit nor any other Circuit Court of Appeals has decided what pleading standard governs affirmative defenses in the wake of the Supreme Court's pleading decisions in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), and Ashcroft v. Iqbal , 556 U.S. 662 (2009). See Polk v. Legal Recovery Law Offices, ___ F.R.D. ___, 2013 WL 3147728, at *2 (S.D. Cal. 2013) (acknowledging the same); see also Herrera v. Churchill McGee, LLC , 680 F.3d 539, 547 n.6 (6th Cir. 2012) ("express[ing] no view" on the issue). Under the heightened pleading standard enunciated in Twombly and Iqbal, a party must state "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. Under the prior "fair notice" pleading standard, "[t]he key to determining the sufficiency of pleading an affirmative defense [wa]s whether it gives plaintiff fair notice of the defense." Wyshak v. City Nat'l Bank , 607 F.2d 824, 827 (9th Cir. 1979) (per curiam).

In the absence of controlling circuit authority, district courts in the Ninth Circuit and the Eastern District have divided on what pleading standard applies to affirmative defenses. Compare, e.g., Strategic Rests. Acquisition Co. II, LLC, 2013 WL 3120322, at *6 ("find[ing] that affirmative defenses are subject to the heightened pleading standards announced in Twombly and Iqbal"), with Islands Rests., LP , 280 F.R.D. at 566 ("declin[ing] to extend the Twombly/Iqbal pleading standards to affirmative defenses"). However, this issue need not be reached here since even if the lesser Wyshak pleading standard applies, Plaintiff's motion will be granted in full. See generally J & J Sports Prods., Inc. v. Gidha, No. CIV-S-10-2509-KJM-KJN , 2012 WL 537494, at *2 (E.D. Cal. Feb. 17, 2012) (adopting this approach and "declin[ing] to reach the issue of whether the heightened pleading standard applies to defendant's answer"); J & J Sports Prods., Inc. v. Luhn, No. 2:10-CV-03229 JAM-CKD, 2011 WL 5040709, at *1 n.2 (E.D. Cal. Oct. 24, 2011) (same).

II. DISCUSSION

1. First Affirmative Defense (Failure to State a Claim)

Defendant asserts in its first affirmative defense that Plaintiff "fails to state a claim upon which relief can be granted." (Answer 9:11-12.) Plaintiff argues this is not an appropriate affirmative defense. (Pl.'s Mot. 9:4-6.)

"Failure to state a claim is not a proper affirmative defense'" and may therefore be stricken. Powell v. Union P. R.R. Co. , 864 F.Supp.2d 949, 962 (E.D. Cal. 2012) (quoting Barnes v. AT&T Pension Benefit Plan-Nonbargained Program , 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010)); see also J & J Sports Prods., Inc. v. Catano, No. 1:12-cv-00739-LJO-JLT, 2012 WL 5424677, at *3 (E.D. Cal. Nov. 6, 2012) (striking affirmative defense alleging failure to state a claim on this ground); J & J Sports Prods., Inc. v. Montanez , 1:10-CV-01693-AWI-SKO, 2010 WL 5279907, at *2 (E.D. Cal. Dec. 13, 2010) (same); Quintana v. Baca , 233 F.R.D. 562, 564 (C.D. Cal. 2005) (same); see generally Fed. Savs. & Loan Ins. Corp. v. Gemini Mgmt. , 921 F.2d 241, 244 (9th Cir. 1990) (committing motions to strike to the sound discretion of the district court). Accordingly, Plaintiff's motion to strike the first affirmative defense is GRANTED.

2. Second Affirmative Defense (Laches, Waiver, and Estoppel); Fourth Affirmative Defense (Failure to Mitigate); Fifth Affirmative Defense (Consent)

Defendant asserts in its second affirmative defense that Plaintiff's "claims are barred by the application of the equitable defenses of laches, waiver, and estoppel." (Answer 9:14-16.) Plaintiff argues Defendant "has not alleged sufficient facts to provide notice of the nature of any of [these] affirmative defenses." (Pl.'s Mot. 4:1-2.) Defendant asserts in its fourth affirmative defense that "Plaintiff has failed to mitigate [his] damages, if any." (Answer 9:21-22.) Plaintiff argues this defense is insufficient since "[D]efendant merely states the definition of the doctrine but fails to provide notice of the basis for the defense." (Pl.'s Mot. 6:20-21.) Defendant asserts in its fifth affirmative defense that Plaintiff's "claims are barred, in whole or in part, by [Plaintiff's] consent to the allegedly unlawful conduct." (Answer 9:24-25.) Plaintiff argues "[t]his defense gives [P]laintiff no notice of [its] legal or factual basis... and should be stricken for failure to plead a cognizable defense." (Pl.'s Mot. 7:1-3.)

"The 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. "Where an affirmative defense simply states a legal conclusion or theory without the support of facts explaining how it connects to the instant case, it is insufficient and will not withstand a motion to strike." Solis v. Zenith Capital, LLC, No. C 08-4854 PJH , 2009 WL 1324051, at *2 (N.D. Cal. May 8, 2009). Here, Defendant's failure to mitigate defense "gives no notice to [Plaintiff] of the basis of his alleged failure to mitigate." Islands Rests., LP , 280 F.R.D. at 570. Defendant's consent defense also fails to supply the specifics that could provide Plaintiff with "fair notice of the defense." Wyshak , 607 F.2d at 827. Likewise, as pleaded, Defendant's affirmative defenses of laches, waiver, and estoppel "do not articulate how these doctrines apply to the claims set forth in the [c]omplaint. Defendant simply refers to the equitable doctrines of [laches, ] waiver and estoppel, and does not provide any supporting facts, making it impossible for Plaintiff to ascertain the basis for these affirmative defenses." J & J Sports Prods., Inc. v. Nguyen, No. C 11-05433, 2012 WL 1030067, at *2 (N.D. Cal. Mar. 22, 2012). Accordingly, Plaintiff's motion to strike the second, fourth, and fifth affirmative defenses is GRANTED.

3. Third Affirmative Defense (Statute of Limitations)

Defendant asserts in its third affirmative defense that Plaintiff's "claims are barred, in whole or in part, by the applicable statute of limitations." (Answer 9:18-19.) Plaintiff argues this defense is "insufficient because Defendant has not... alleged ...


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