United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE.
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.
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.”)).
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)). 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.
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).
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. The Court will consider each of the
challenged affirmative defenses in turn.
Defense No. 1
Affirmative Defense No. 1: Plaintiff has failed to
state a claim upon which relief can be granted.
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.
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 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.
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.
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