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Pickern v. Chico Steakhouse, Lp

United States District Court, Ninth Circuit

August 7, 2013



CAROLYN K. DELANEY, Magistrate Judge.

This matter is before the Court on Plaintiff Brenda Pickern's ("Plaintiff") Motion to Strike Affirmative Defenses in Chico Mall Investor LLC's Answer. (ECF No. 31.) Defendant Chico Investors, LLC ("Defendant") opposes Plaintiff's motion. (ECF No. 33). For the reasons set forth below, Plaintiff's motion to strike is GRANTED IN PART and DENIED IN PART.


In Plaintiff's Complaint she states that she is "physically disabled, ' as defined by California and United States laws" and that upon visiting the Outback Steakhouse at 1990 East 20th Street in Chico, California, she "encountered barriers (both physical and intangible) that interfered with-if not outright denied-her ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility." (Complaint, ECF No. 1 at 2-3.) Plaintiff filed a complaint against Defendant seeking damages, injunctive relief, declaratory relief, attorney fees and costs pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. ยง 12101, ("ADA") and related California statutes. Plaintiff moves this Court to strike nineteen of the affirmative defenses contained in Defendant's answer.[1] Specifically, Plaintiff requests that Affirmative Defenses One, Four, Five, Six, Eleven, Thirteen, Twenty-one, Twenty-three and Twenty-four be stricken for failing to allege sufficient facts to notify Plaintiff of the defenses. (ECF No. 31-1 at 2-6.) In addition, Plaintiff asks this Court to strike Affirmative Defenses Two, Three, Seven, Ten, Eighteen, and Twenty-eight without leave to amend because they are "legally insufficient under any set of facts." (ECF No. 31-1 at 8-11.) Finally, Plaintiff asks that Affirmative Defenses Fourteen, Fifteen, Twenty-five, and Twenty-six be stricken without leave to amend because they are impertinent. (ECF No. 31-1 at 10-11.)

In Defendant's opposition, Defendant requests that the Court grant Chico Mall leave to amend its answer with respect to the First (Failure to State a Cause of Action), Fifth (Privilege and Justification), Seventh (Unclean Hands), Thirteenth (Standing), Twenty-third (Not Readily Achievable), and Twenty-sixth (Limited Damages) affirmative defenses. (ECF No. 33 at 3.) Defendant opposes Plaintiff's motion to strike Defendant's Sixth Affirmative Defense (Laches) and Eleventh Affirmative Defense (Failure to Mitigate). Accordingly, because Defendant does not oppose the dismissal of Affirmative Defenses Two, Three, Four, Ten, Fourteen, Fifteen, Eighteen, Twenty-one, Twenty-four, Twenty-five, and Twenty-eight, this Court grants Plaintiff's motion to strike those defenses. Thus, in accordance with Plaintiff's motion, Affirmative Defenses Four, Twenty-one, and Twenty-four are stricken with leave to amend, and Affirmative Defenses Two, Three, Ten, Fourteen, Fifteen, Eighteen, Twenty-five, and Twenty-eight are stricken without leave to amend.

As such, the Court is left to determine whether Affirmative Defenses One, Five, Six, Seven, Eleven, Thirteen, Twenty-three and Twenty-six should be stricken, and if so whether Defendant should be granted leave to amend these defenses.[2]

II. Legal Standard

a. Motion to Strike

Under Federal Rule of Civil Procedure 12(f), a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "[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). "Ultimately, whether to grant a motion to strike lies within the sound discretion of the district court." Id. 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). If the court is in doubt as to whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, leaving an assessment of the sufficiency of the allegations for adjudication on the merits. See generally Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010).

b. Pleading Standard

Rule 8(c) provides, in pertinent part, that "a party must affirmatively state any avoidance or affirmative defense." FED. R. CIV. P. 8(c). The Ninth Circuit has held that "[t]he 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 (citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957)); accord 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." Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 564 (S.D. Cal. 2012) (citing Conley, 355 U.S. at 47). "On the other hand, an affirmative defense is legally insufficient only if it clearly lacks merit under any set of facts the defendant might allege.'" Id. (quoting McArdle v. AT&T Mobility, LLC, 657 F.Supp.2d 1140, 1149-50 (N.D. Cal. 2009)).

III. Analysis

Plaintiff asks this Court to strike Defendant's "deficient affirmative defenses" by extending the rationale set forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), to all pleadings. (ECF No. 31-1 at 3.) Plaintiff claims that this "all-pleadings approach" has been adopted by a majority of courts. (ECF No. 31-1 at 3.)

Neither the Ninth Circuit nor any other Circuit Court of Appeals has ruled on this issue. Although the "all-pleadings approach" has been adopted by some courts, [3] this Court finds that a number of more recent decisions within California have opted not to adopt this approach. See Kohler, 280 F.R.D. at 565-66; Uriarte v. Schwarzenegger, No. 06-CV-1558, 2012 WL 1622237, at *3 (S.D. Cal. May 4, 2012); Weddle v. Bayer AG Corp., No. 11-CV-817, 2012 WL 1019824, at *2 (S.D. Cal. Mar. 26, 2012); Meas v. CVS Pharmacy, No. 11-CV-0823, 2011 WL 2837432, at *3 (S.D. Cal. July 14, 2011); Joe Hand Promotions, Inc. v. Estradda, No. 1:10-CV-02165, 2011 WL 2413257, at *5 (E.D. Cal. June 8, 2011); J & J Sports Prods., Inc. v. Scace, No. 10cv2496, 2011 WL 2132723, at *1 (S.D. Cal. May 27, 2011); Garber v. Mohammadi, No. CV 10-7144, 2011 WL 2076341, at *4 (C.D. Cal. Jan.19, 2011); see also Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870, 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). Furthermore, the Court finds their reasons for not ...

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