United States District Court, N.D. California
ORDER STRIKING AFFIRMATIVE DEFENSES
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.
Realty Investors' and Heartland Santa Rosa Limited
Partnership's (collectively, “Heartland”)
Answer (dkt. 11) to Sarah Pertz's Complaint (dkt. 1)
asserts thirty-two affirmative defenses. All thirty-two are
devoid of factual support, and many are not affirmative
defenses at all. Pertz's motion to strike Heartland's
affirmative defenses is therefore granted. Heartland may
amend its Answer to attempt to salvage any defenses struck
without prejudice. The Court finds this matter suitable for
resolution without oral argument, pursuant to Civil Local
Rule 7-1(b), and therefore vacates the hearing currently set
for Friday, January 17, 2020.
must “affirmatively state any avoidance or affirmative
defense.” Fed.R.Civ.P. 8(c). “Affirmative
defenses plead matters extraneous to the plaintiff's
prima facie case, which deny the plaintiff's right to
recover, even if the allegations of the complaint are
true.” FDIC v. Main Hurdman, 655 F.Supp. 259,
262 (E.D. Cal. 1987) (citing Gomez v. Toledo, 446
U.S. 635, 640-41 (1980)). In contrast, allegations that
plaintiff has not met its burden of proof or which deny
liability are not affirmative defenses. Zivkovic v. S.
Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).
Rule of Civil Procedure 12(f) permits a court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” A ruling on a motion to strike affirmative
defenses must be based on matters contained in the pleadings.
See Kelly v. Kosuga, 358 U.S. 516, 516 (1959).
Ninth Circuit has long held that an affirmative defense is
adequately plead if it “gives plaintiff fair notice of
the defense.” Wyshak v. City Nat'l Bank,
607 F.2d 824, 827 (9th Cir. 1979). While the Ninth Circuit
has not directly addressed the issue, this Court and the
majority of courts in this district have held that the
heightened pleading standard of Twombly and
Iqbal, which followed Wyshak, is now the
correct standard to apply to affirmative
defenses. See, e.g., Fishman v. Tiger
Natural Gas Inc., No. C 17-05351 WHA, 2018 WL 4468680,
at *3 (N.D. Cal. Sept. 18, 2018); Ramirez v. Ghilotti
Bros. Inc., 941 F.Supp.2d 1197, 1204 (N.D. Cal. 2013).
Accordingly, Heartland's affirmative defenses must
contain sufficient factual matter to state a defense
“that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
court strikes an affirmative defense, leave to amend should
be freely given so long as there is no prejudice to the
moving party. Wyshak, 607 F.2d at 826.
affirmative defenses do not meet this standard. Not one of
the thirty-two affirmative defenses pled in the Answer is
supported by factual allegations. See Answer at
9-13. All thirty-two affirmative defenses are stricken as
Heartland's first, twelfth, twentieth, and thirty-first
affirmative defenses are not affirmative defenses at all. As
Pertz correctly notes, they “merely contest the
sufficiency of the pleading of the complaint.” Mot.
(dkt. 17) at 9-10; see also Main Hurdman,
655 F.Supp. at 262. Heartland's second, eighth,
fourteenth, fifteenth, sixteenth, seventeenth, nineteenth,
and twenty-seventh affirmative defenses are also not actually
affirmative defenses, because they simply deny liability.
See Zivkovic, 302 F.3d at 1088. And Heartland's
thirty-second affirmative defense is not a defense but a
reservation of the right to assert additional affirmative
defenses. See Fishman, 2018 WL 4468680, at *7
("An attempt to reserve affirmative defenses for a
future date is not a proper affirmative defense in
itself." (internal quotation marks and citations
omitted)). Because they are not actually affirmative
defenses, these defenses are stricken with
prejudice. See J & J Sports Prods, v.
Coyne, No. C 10-04206 CRB, 2011 WL 227670, at *2 (N.D.
Cal. Jan. 24, 2011).
the Court is striking Heartland's affirmative defenses as
insufficiently pled or because they are not actually
affirmative defenses, it need not address Pertz's
alternative argument that some of Heartland's affirmative
defenses are inapplicable to the causes of action in this
case. Mot. at 12-13. Nonetheless, if Heartland chooses to
amend, it should be careful to avoid asserting affirmative
defenses which are inapplicable to the Complaint, or
otherwise run afoul of Rule 12(f).
foregoing reasons, the motion to strike Heartland's
affirmative defenses is GRANTED. Heartland is granted leave
to amend its Answer to attempt to salvage ...