United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO STRIKE
DEFENSES. ECF NO. 54.
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
8, 2019, Plaintiff filed an amended complaint against the
above-captioned Defendants. ECF No. 13. Plaintiff sued for
damages under the Truth in Lending Act, 15 U.S.C. § 1601
et seq., and for clarification as to the
parties' rights and obligations flowing from a loan
disbursed in 2017. Id. After the Court denied
Defendants' motion to dismiss, ECF No. 44, Defendants
filed three answers: (1) an answer by Salomon Benzimra and
Stanley Kesselman, ECF No. 45 (the “First
Answer”); (2) an answer by Marquee Funding Group, Inc.
(“MFG”), ECF No. 48 (the “Second
Answer”); and (3) an answer by the remaining
Defendants. ECF No. 49 (the “Third Answer”).
These Answers contain twenty, twenty, and fourteen
affirmative defenses, respectively. See ECF No. 45
at 15-18; ECF No. 48 at 13-17; ECF No. 49 at 19-22.
September 24, 2019, Plaintiff filed the instant motion to
strike all the affirmative defenses in each answer. ECF No.
54. On October 18, Defendant MFG filed an opposition to
Plaintiff's motion regarding the Second Answer. ECF No.
59. On October 18, Mr. Benzimra, Mr. Kesselman, and the
remaining Defendants jointly filed a second opposition to
Plaintiff's motion regarding the First and Third Answers.
ECF No. 58. On November 1, 2019, Plaintiff filed two replies
addressing Defendants' oppositions. ECF No. 60, 61.
question presented for the Court to decide is whether
Defendants' First, Second, and Third Answers
“give plaintiff fair notice of” the fifty-four
affirmative defenses contained therein. Wyshak v. City
Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979),
overruled on other grounds by Castro v. County of Los
Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).
may, by motion or on its own initiative, strike “an
insufficient defense or any redundant, immaterial,
impertinent or scandalous” matter from the pleadings.
Fed.R.Civ.P. 12(f). The purpose of Rule 12(f) is “to
avoid the expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues
prior to trial.” Whittlestone, Inc. v. Handi-Craft
Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th
Cir. 1993), rev'd on other grounds, Fogerty
v. Fantasy, Inc., 510 U.S. 517 (1994) (quotations
omitted). Motions to strike are generally “disfavored,
” Petrie v. Elec. Game Card, Inc., 761 F.3d
959, 965 (9th Cir. 2014), and “should not be granted
unless it is clear that the matter to be stricken could have
no possible bearing on the subject matter of the
litigation.” Loi Nguyen v. Durham Sch. Servs.,
L.P., 358 F.Supp.3d 1056, 1058 (C.D. Cal. 2019)
Ninth Circuit, “[t]he key to determining the
sufficiency of pleading an affirmative defense is whether it
gives plaintiff fair notice of the defense.”
Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1023
(9th Cir. 2010) (quoting Wyshak, 607 F.2d at 827),
overruled in part by Castro, 833 F.3d 1060.
“Fair notice generally requires that the defendant
state the nature and grounds for the affirmative
defense.” Roe v. City of San Diego, 289 F.R.D.
604, 608 (S.D. Cal. 2013). In other words, Plaintiff must be
afforded the “opportunity to rebut [the asserted]
defense[s] or to alter [his] litigation strategy” based
on the pleadings. Simmons, 609 F.3d at 1023 (quoting
In re Gayle Sterten, 546 F.3d 278, 285 (3d Cir.
2008)). Fair notice, however, does not “require a
detailed statement of facts.” Roe, 289 F.R.D.
Court must view the pleading in the light most favorable to
the pleader when ruling on a motion to strike. In re
2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955, 965
(C.D. Cal. 2000) (citing California v. United
States, 512 F.Supp. 36, 39 (N.D. Cal. 1981)). If a claim
is stricken, leave to amend should be freely given when doing
so would not cause prejudice to the opposing party. Vogel
v. Huntington Oaks Delaware Partners, LLC, 291
F.R.D. 438, 440 (C.D. Cal. 2013) (citing Wyshak, 607
F.2d at 826).
Fair Notice Pleading Standard
urges the Court to review the pleaded defenses for
plausibility pursuant to Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). ECF No. 54-2 at 3-5.
Defendants contend that the Court should only review the
pleadings for fair notice. ECF No. 58 at 8-11; ECF No. 59 at
Court declines to apply the plausibility standard here as
neither the Ninth Circuit nor the Supreme Court have
instructed the courts to depart from the notice-pleading
standard applied in evaluating the sufficiency of an
affirmative defense. See Kohler v. Flava Enterprises,
Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (applying
notice pleading); Simmons, 609 F.3d at 1023 (same);
Wyshak, 607 F.2d at 827 (same). Moreover, as has
been articulated by other district courts in this circuit,
there is ample reason to doubt that the plausibility
requirements of Twombly and Iqbal should be
extended to affirmative defenses. See Loi Nguyen,
358 F.Supp.3d at 1058-60 (C.D. Cal. 2019); Kohler v.
Islands Restaurants, LP, 280 F.R.D. 560, 566 (S.D. Cal.
2012); but see Rahman v. San Diego Accounts Serv.,
No. 16-CV-2061-JLS, 2017 WL 1387206, at *2 (S.D. Cal. Apr.
the Court assesses Defendants' affirmative defenses under
the “fair notice” pleading standard.
Wyshak, 607 F.2d at 827. Plaintiff's arguments
that proceed on the heightened “plausibility”
standard are inapposite. See generally ECF Nos. 60,
Defenses in the First and Second Answers ...