United States District Court, E.D. California
(14) DAY OBJECTION DEADLINE
FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND
DENY IN PART MOTION TO STRIKE AFFIRMATIVE DEFENSES (ECF No.
Michael J. Seng, UNITED STATES MAGISTRATE JUDGE
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
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).
Motion to Strike Affirmative Defenses
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
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.
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
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).
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).
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).
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