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 Certain of
Defendant Lillian Marlene Rau's Affirmative Defenses [DE
34], filed by Plaintiff Markel Insurance Company
(“MIC”) on December 14, 2016. Defendant Lillian
Marlene Rau filed a response on December 20, 2016, and MIC
filed a reply on December 27, 2016.
underlying lawsuit, Rau, as personal representative of
Chester R. Stofko, filed a complaint for damages against
United Emergency Medical Services, LLC (UEMS) and Abraham
Nadermohammadi for alleged injuries to Stofko resulting from
an automobile collision in which Stofko's vehicle was
struck by an ambulance driven by Nadermohammadi. UEMS and
Nadermohammadi sought coverage from MIC for this underlying
brought the instant litigation, in which Nadermohammadi,
UEMS, and Rau are named as Defendants, to declare the rights
and other legal relations of the parties regarding a Business
Auto Insurance Policy issued by MIC to UEMS. In the instant
motion, MIC asks the Court to strike four of the affirmative
defenses that Rau listed in her Answer to MIC's Amended
defense is an affirmative defense if it is specifically
enumerated in Fed.R.Civ.P. 8(c), if the defendant bears the
burden of proof, or if the defense does not require
controverting the plaintiff's proof.” Perez v.
PBI Bank, Inc., No. 1:14-CV-1429, 2015 WL 500874, at *5
(S.D. Ind. Feb. 4, 2015) (footnote omitted) (citing
Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d
856, 872 (7th Cir. 2012)). 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. 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). Affirmative defenses “must set forth
a ‘short and plain statement' of the
defense.” Heller Fin., 883 F.2d at 1294
(citation omitted) (quoting Fed.R.Civ.P. 8(a)).
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 continues to agree with those cases declining to apply
the “plausibility” standard of Iqbal and
Twombly to affirmative defenses. See Cottle v.
Falcon Holdings Mgmt., LLC, Cause No. 2:11-CV-95, 2012
WL 266968, at *1-3 (N.D. Ind. Jan. 30, 2012) (Cherry, M.J.)
(providing extensive discussion of the issue and citing
supporting cases); see also Bielfeldt v. Bourazak,
No. 1:15-CV-01419, 2016 WL 1383464, at *2 (C.D. Ill. Apr. 7,
2016). “Even under the liberal notice pleading
standards . . ., an affirmative defense must include either
direct or inferential allegations as to all elements of the
defense asserted.” Pringle v. Garcia, Cause
No. 2:09-CV-22, 2009 WL 1543460, at *1 (N.D. Ind. June 2,
2009) (quoting Reis Robotics USA, Inc. v. Concept
Industries, Inc., 462 F.Supp.2d 897, 904 (N.D. Ill.
seeks to have the Court strike Rau's Affirmative Defenses
Nos. 1, 3, 4, and 5. Rau, in her response, withdraws
Affirmative Defenses Nos. 1 and 5. Therefore, still at issue
are Rau's Affirmative Defenses Nos. 3 and 4.
Affirmative Defense No. 3
Defense Number 3 provides:
As an alternate pleading, the alleged absence of subject
vehicle . . . from the insurance policy at issue in the
above-captioned case was due in whole or in part to the acts
and/or omissions of the agent for UEMS following non-parties:
(a) Insurance Service Center, Inc. . . . (b) Jack L. Rosen .
. . (c) Phillip B. Rosen . . . .
though MIC, contends that Rau does not have standing to
assert negligent procurement of insurance as a defense, the
only argument MIC makes in support is citation to two
opinions, neither of which has precedential authority and
neither of which addresses standing to raise negligent
procurement as an affirmative defense. MIC has not presented
the Court adequate grounds upon which to strike the defense
on the basis of lack of standing.
Rau's affirmative defense alleges that an agent for
Defendant UEMS is responsible for the subject vehicle not
being included in the insurance policy obtained from MIC.
Even assuming that this is true, the affirmative defense
fails to provide a ground upon which the relief requested in
the Complaint-declaratory judgment that MIC has no duty to
defend or indemnify Defendants UEMS and Nadermohammadi-should
not be given. In her response to the instant motion, Rau
argues that facts may be revealed in discovery that show that
the named non-parties are actually agents of MIC, and,
consequently, that MIC is liable for the non-parties'
actions. However, the affirmative defense specifically states
that the non-parties are UEMS's agents. As it is written,
this affirmative defense places fault with UEMS, not MIC.
Further, the argument that the non-parties are MIC's
agents is presented in Affirmative Defense No. 2, which MIC
does not seek to have stricken. In Affirmative Defense No. 3,
there is no short and plain statement of facts that, if true,
shows that MIC is not entitled to the relief it requests in
its Complaint. The Court strikes this affirmative defense.