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McFerson v. Gilden

United States District Court, N.D. Indiana, Hammond Division

October 6, 2016

DAIQUAN MCFERSON, Plaintiff,
v.
P.O. BRIAN GILDEN, individually, and the CITY OF GARY, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE.

         This matter is before the Court on a Motion to Strike Affirmative Defenses [DE 15], filed by Plaintiff Daiquan McFerson on July 28, 2016. Defendants filed a response on August 14, 2016 and Plaintiff filed a reply on August 22, 2016.

         Under Federal Rule of Civil Procedure 12(f), the Court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f); see also Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009) (citing Rule 12(f) and affirming the striking of portions of a counterclaim). The Seventh Circuit Court of Appeals has held that motions to strike are generally disfavored; however, a motion to strike may “serve to expedite, not delay, ” when it seeks to strike portions of a pleading to “remove unnecessary clutter from the case.” Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Affirmative defenses are stricken “only when they are insufficient on the face of the pleadings.” Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991) (citing Heller, 883 F.2d at 1294 (“Ordinarily, defenses will not be struck if they are sufficient as a matter of law or if they present questions of law or fact.”)).

         “Affirmative defenses are pleadings and, therefore, are subject to all pleading requirements of the Federal Rules of Civil Procedure” and “must set forth a ‘short and plain statement' of the defense.” Heller, 883 F.2d at 1294 (quoting Fed.R.Civ.P. 8(a)).[1] In Heller, the court found several defenses meritless because they were “nothing but bare bones conclusory allegations, ” noting that the defendant “omitted any short and plain statement of facts and failed totally to allege the necessary elements of the alleged claims.” Id. at 1295.

         The Seventh Circuit Court of Appeals has not yet decided whether the pleading standard for a complaint set forth in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies to all Rule 8 pleadings, including affirmative defenses. This Court agrees with those cases declining to apply the “plausibility” standard of Iqbal and Twombly to affirmative defenses. See Cottle v. Falcon Holdings Mgmt., LLC, No. 2:11-CV-95, 2012 WL 266968 (N.D. Ind. Jan. 30, 2012) (providing extensive discussion of the issue and citing supporting cases); see also Bielfeldt v. Bouraazak, No. 1:15-CV-01419, 2016 WL 1383464, at *2 (C.D. Ill. Apr. 7, 2016).

         In the instant motion, Plaintiff asks the Court to strike the affirmative defenses provided in paragraphs 1, 2, 6, 8, 9, 13-15, 18, 20, 21, and 25 of Defendants' Answer.[2] The Court will consider each of the challenged affirmative defenses in turn.

         Affirmative Defense No. 1

Affirmative Defense No. 1: Plaintiff has failed to state a claim upon which relief can be granted.

         Plaintiff argues that failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is not a valid affirmative defense. In their response, Defendants argue that the affirmative defense of “failure to state a claim” should not be interpreted as “lacking specificity and conclusory” and, therefore, is a valid affirmative defense and should not be stricken.

         The defense of failure to state a claim is not an affirmative defense. See Mandel Metals, Inc. v. Walker Group Holdings, No. 14 CV 8493, 2015 WL 3962005, at *10 (N.D. Ill. June 26, 2015) (citing Illinois Wholesale Cash Register, Inc. v. PCG Trading, LLC, No. 08 C 363, 2009 WL 1515290, at *2 (N.D. Ill. May 27, 2009); Cottle, 2012 WL 266968, at *3. Failure to state a claim, although a defense, is not an “affirmative defense” because it does not assume that the allegations of the Complaint are true and then provide a separate reason why the defendant is not liable. Cottle, 2012 WL 266968, at *3. Accordingly, the Court strikes Affirmative Defense No. 1 from Defendants' Answer because it is not a valid affirmative defense.

         Affirmative Defense No. 2

Affirmative Defense No. 2: To the extent that Plaintiff failed to comply with any applicable statute of limitations, the claims are time barred.

         Plaintiff argues that, as written, Affirmative Defense No. 2 does not meet the “fair notice” pleading standard provided in Heller. In their response, Defendants argue that the statute of limitations defense is valid because it is supported by factual and legal issues of whether Plaintiff has properly named Defendant Officer Gilden (Defendants represent that his actual surname is “Gildon”) and served him with notice under the Indiana Tort Claims Act, Ind. Code. 34-13-3-8.

         Raising an affirmative defense for failure to comply with the statute of limitations without including the relevant statutory period is a “bare bones assertion” that does not meet the pleading standard required by Rule 8 of the Federal Rules of Civil Procedure. Puryear v. Indiana Pallet Co., 2:11-CV-12, 2011 WL 5553697, at *2 (N.D. Ind. 2011) (citing Nat'l Council on Comp. Ins., Inc. v. Am. Int'l Group, Inc., No. 07 C 2898, 2009 WL 466802, at *7 (N.D. Ill. Feb. 23, 2009). Accordingly, Defendants' Affirmative Defense No. 2 is stricken from Defendants' Answer.

         Affirmative Defenses ...


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