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Antonio v. Kokor

United States District Court, E.D. California

March 9, 2017

MARINO HERNANDEZ ANTONIO, Plaintiff,
v.
WINFRED M. KOKOR, et al., Defendants.

         FOURTEEN (14) DAY OBJECTION DEADLINE

          FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART MOTION TO STRIKE AFFIRMATIVE DEFENSES (ECF No. 29)

          Michael J. Seng, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Dr. Winfred M. Kokor and Nurse Stronach on Plaintiff's Eighth Amendment medical indifference and state law negligence claims.

         On January 25, 2017, Plaintiff filed a motion to strike Defendants' affirmative defenses. (ECF No. 29.) Defendants filed an opposition. (ECF No. 32.) Plaintiff did not file a reply, and the time to do so has passed. The matter is submitted. Local Rule 230(l).

         I. Motion to Strike Affirmative Defenses

         Plaintiff moves to strike the following affirmative Defenses: No. 1 (failure to state a claim), No. 2 (failure to exhaust), No. 3 (statute of limitations), No. 4 (qualified immunity), No. 5 (res judicata and collateral estoppel), No. 6 (failure to allege a claim for punitive damages), No. 7 (failure to mitigate damages), No. 8 (Plaintiff's contribution to damages), No. 9 (uncertain claim), No. 10 (doctrine of laches and unreasonable delay), No. 11 (doctrine of unclean hands, estoppel, and waiver), No. 13 (failure to show physical injury as required by 42 U.S.C. § 1997e(e)), No. 14 (no liability for Defendants' exercise of discretion, under Cal. Gov't Code §§ 815.2 and 820.2), No. 15 (no liability for acts of other persons, under Cal. Gov't Code §§ 815.2 and 820.8), No. 16 (no liability for failure to discharge mandatory duties, under Cal. Gov't Code § 815.6), and No. 18 (additional affirmative defenses).

         Plaintiff argues that Defendants have not provided sufficient detail to support their affirmative defenses under the pleading standards set out in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). According to Plaintiff, Defendants have asserted boilerplate defenses that lack factual support and that do not provide Plaintiff with fair notice of the nature of the defenses.

         Defendants concede that Defense Nos. 5, 6, 9, and 18 may be stricken. Accordingly, those defenses should be stricken. As to the remaining defenses, Defendants argue that their responses are sufficient to provide fair notice of the defense to Plaintiff.

         A. Legal Standard

         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.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation omitted). The function of Rule 12(f) is “to avoid the expenditure of time and money that must arise from litigating spurious issues by disposing of those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).

         Motions to strike are disfavored, “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); see also Neveau v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005). The Court “must view the pleading under attack in the light more favorable to the pleader.” Garcia ex rel. Marin v. Clovis Unified School Dist., 2009 U.S. Dist. LEXIS 83352, 2009 WL 2982900, at *23 (E.D. Cal. Sept.14, 2009) (internal citation omitted). Even if a court strikes an affirmative defense, leave to amend should be freely given where the opposing party will not be prejudiced given the strong policy favoring resolution of cases “on the proofs rather than the pleadings.” Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 213 (9th Cir. 1957); Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979).

         “An affirmative defense is [a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.” Solis v. Couturier, No. 2:08-CV-02732-RRB-GGH, 2009 U.S. Dist. LEXIS 63271, 2009 WL 3055207, at *4 (E.D. Cal. Sept. 17, 2009) (internal citations omitted). An affirmative defense is insufficient as a matter of pleading if it fails to give plaintiff “fair notice.” “The ‘fair notice' required by the pleading standards only requires describing the defense in ‘general terms.'” Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 (3d ed. 1998)). This is less demanding than the Twombly/Iqbal standard. Dodson v. Munirs Co., No. CIV. S-13-0399 LKK, 2013 U.S. Dist. LEXIS 85768, 2013 WL 3146818, at *2 (E.D. Cal. June 18, 2013) (“Fair notice generally requires that the defendant identify the nature and grounds for the affirmative defense, rather than plead a detailed statement of the facts upon which the defense is based.”). “Although fair notice is a low bar that does not require great detail, it does require a defendant to provide some factual basis for its affirmative defenses.” United States v. Gibson Wine Co., No. 15-1900, 2016 WL 1626988, at *5 (E.D. Cal. Apr. 25, 2016) (internal quotation marks and citations omitted). Simply referring to a doctrine or statute is insufficient to afford fair notice. Wild v. Benchmark Pest Control, Inc., No. 1:15-cv-01876-JLT, 2016 WL 1046925, at *4 (E.D. Cal. Mar. 16, 2016); Stevens v. Corelogic, Inc., No. 14-cv-1158-BAS-JLB, 2015 WL 7272222, at *4 (S.D. Cal. Nov. 17, 2015); Beco Dairy Automation Inc. v. Global Tech Systems, Inc., 1:12-cv-01310 LJO SMS, 2015 WL 5732595 (E.D. Cal. Sept. 28, 2015); Kohler v. Staples, 291 F.R.D. 464, 469 (S.D. Cal. 2013). Likewise, “[s]imply identifying an affirmative defense by name does not provide fair notice of the nature of the defense or how it applies in [the] action. . . .” Bd. of Trustees of IBEW Local Union No. 100 Pension Tr. Fund v. Fresno's Best Indus. Elec., Inc., No. 1:13-cv-01545-AWI-SKO, 2014 WL 1245800, at *4 (E.D. Cal. Mar. 24, 2014).

         B. Discussion

         Plaintiff argues, first, that Defense No. 1 (failure to state a claim) is not an affirmative defense but rather an assertion of a defect in Plaintiff's prima facie case. Defendants counter that Rule 12(h)(2) supports the interpretation that failure to state a claim may be asserted in an answer, citing E & J Gallo Winery v. Grenade Beverage, LLC, No. 1:13-cv-00770-AWI-SAB, 2014 U.S Dist. LEXIS 20613, at *5 (E.D. Cal. Feb. 18, 2014) (citing Fed. R. Civ. P. 12(h)(2) (“Failure to state a claim upon which relief can be granted . . . may be raised: (A) in any pleading allowed or ordered under Rule 7(a) [or] (B) by a motion under rule ...


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