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Reger v. Arizona RV Centers, LLC

United States District Court, N.D. Indiana, South Bend Division

May 30, 2018

KEVIN REGER, Plaintiff,
v.
ARIZONA RV CENTERS, LLC, et al., Defendants.

          OPINION AND ORDER

          Michael G. Gotsch, Sr. United States Magistrate Judge.

         On January 15, 2018, Plaintiff, Kevin Reger (“Plaintiff”) filed his Motion to Strike Defendants' Affirmative Defenses pursuant to Fed.R.Civ.P. 12(f). [DE 33]. On January 26, 2018, Defendants, Thor Motor Coach, Inc. (“TMC”) and Arizona RV Centers, LLC (“ARV”), filed their joint response. [DE 34]. On February 5, 2018, Plaintiff filed his reply brief[1] and his motion to strike became ripe on March 5, 2018 [DE 36], when Defendants filed their Sur-Reply. [DE 42].

         I. Relevant Background

         On November 16, 2016, Plaintiff filed his Complaint alleging various claims against Defendants arising from his purchase of a recreational vehicle (“RV”) from ARV on August 21, 2015. Included with the sale of the RV was a warranty that would be carried out by TMC in the event that any of its provisions were triggered.

         Plaintiff alleges that ARV deceptively sold him the RV as “new” while the generator actually showed that over 50 hours had been logged on it before the sale. [DE 2 at 2]. He believed that the RV had actually been used as a demo by ARV at RV shows. [Id.]. Plaintiff further alleges that he discovered rust on the frame and chassis of the RV, and he additionally disclosed to TMC cracks in the roof which he believed were caused by “excessive flexing and movement of the RV's structure caused by the chassis extension.” [Id.].

         Plaintiff brought a number of claims against Defendants, including various allegations regarding breach of warranty as well as statutory claims under the federal Magnuson-Moss Warranty Act and the Indiana Deceptive Consumer Sales Act (“IDCSA”). Defendants, through shared counsel, each filed an Answer to the Plaintiff's Second Amended Complaint, which denied the vast majority of Plaintiff's allegations and also included twenty-seven affirmative defenses. ARV alleged twelve affirmative defenses while TMC alleged fifteen, many of which read the same or share some overlap. Through the instant motion, Plaintiff asks the Court to strike all twenty-seven of the affirmative defenses brought forth by Defendants for varying reasons.

         II. Discussion

         A. Legal Standard

         An affirmative defense is a pleading and is “a defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's . . . claim, even if all the allegations in the complaint are true.” Bell v. Taylor, 827 F.3d 699, 705 (7th Cir. 2016) (citing Black's Law Dictionary, (10th Ed. 2014)). “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Rule 12(f) further authorizes a court to strike a pleading or part of a pleading “on its own; or on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Id. “Motions to strike generally are disfavored, although they may be granted if they remove unnecessary clutter from a case and expedite matters, rather than delay them.” Cincinnati Ins. Co. v. Kreager Bros. Excavating, Inc., No. 2:12-cv-470-JD-APR, 2013 WL 3147371, at *1 (N.D. Ind. June 18, 2013) (referencing Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989)). The district court retains discretion to determine whether to strike material pursuant to Fed.R.Civ.P. 12(f). Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).

         District courts across the country disagree as to whether affirmative defenses must meet the heightened “plausibility” standard for complaints as articulated in Twombly and Iqbal or whether they must meet a lesser standard requiring a court to strike defenses “only when they are insufficient on the face of the pleadings.” Heller, 883 F.2d at 1294 (quoting from Fed.R.Civ.P. 8(a)). Neither the Seventh Circuit nor the Supreme Court has squarely addressed which standard courts should follow, but the Northern District of Indiana has continued to follow the less stringent standard as described in the Seventh Circuit's Heller case. See, e.g., Taylor v. Chase, No. 4:16-CV-52-PPS-JEM, 2016 WL 6575072, at *2 (N.D. Ind. Nov. 7, 2016); Malibu Media, LLC v. Doe, 1:13-CV-30, 2013 WL 4048513, at *1 (N.D. Ind. Aug. 9, 2013); Cincinnati Ins. Co., 2013 WL 3147371, at *1; Cottle v. Falcon Holdings Mgmt., LLC, No. 2:11-CV-95-PRC, 2012 WL 266968, at *2 (N.D. Ind. Jan. 30, 2012). Therefore, while affirmative defenses must contain more than “bare bones conclusory allegations, ” an affirmative defense supplemented with a brief statement of direct facts or facts inferred from the complaint or answer will defeat a motion to strike. Heller, 883 F.2d at 1294.

         In determining whether to strike affirmative defenses, this Court has looked to “whether the issue is appropriately stated as an affirmative defense, whether the affirmative defense complies with the pleading requirements of Federal Rule of Civil Procedure 8 [i.e., meets Heller], and whether the affirmative defense is capable of surviving a Rule 12(b)(6) analysis.” Cincinnati Ins. Co., 2013 WL 3147371, at *1. If a pled defense fails on any part of the analysis, it must be stricken.

         B. Analysis

         1. Not Appropriately Stated as an Affirmative Defense

         a. Failure to State a Claim

         The First Affirmative Defenses for ARV and TMC claim that the Plaintiff's Second Amended Complaint fails to state a claim upon which relief can be granted for a variety of reasons (some of which are repeated in later listed defenses).[2] “‘Failure to state a claim' is a recognized defense, but it is not an affirmative defense because it does not assume the allegations of the Complaint are true and then articulate a separate reason why the defendant is not liable.” McDowell v. Carroll County, Ind., Cause No. 2:14-CV-466, 2015 WL 2131606, at *2 (N.D. Ind. May 7, 2015) (citing Cottle, 2012 WL 266968, at *3). Here, Defendants simply detail why Plaintiff's allegations fail to state a claim and from what other legal deficiencies the Second Amended Complaint suffers. While these purported affirmative defenses are not devoid of supporting facts, they cannot survive because “failure to state a claim” is not an affirmative defense, especially here where the Defendants have already received a ruling on their Fed.R.Civ.P. 12(b)(6) Motion to Dismiss Plaintiff's claims. [See DE 16]. Furthermore, Defendants' Answers are sufficient on their own to establish which of Plaintiff's allegations they find to be legally or factually deficient. Therefore, ARV's and TMC's First Affirmative Defenses are stricken. [DE 31 at 11-12, ¶ 1; DE 32 at 11-12, ¶ 1].

         b. Failure to Plead Fraud with Specificity

         ARV's Second Affirmative Defense is in the same family as its first, and states:

Plaintiff fails to allege claims sounding in fraud with specificity. In addition, Plaintiff's complaint only alleges omissions on the part of ARV and there is no allegation that ARV intended to mislead the Plaintiff. Moreover the RV was ‘new.'

[DE 31 at 12, ¶ 2]. Through this defense, ARV alleges that Plaintiff's Second Amended Complaint failed to state a claim of fraud with particularity as required by Fed.R.Civ.P. 9(b). Yet, this heightened pleading standard is used to determine the sufficiency of a fraud claim rather than as an affirmative defense. Camasta v. Jos. A Bank Clothiers, Inc., 761 F.3d 732, 736-37 (7th Cir. 2014). Even if failure to plead fraud with specificity could be considered an affirmative defense, it should have been raised in a 12(b)(6) motion to dismiss. United Nat'l Records, Inc. v. MCA, Inc., 609 F.Supp. 33, 38-39 (N.D. Ill. 1984). Arguably, ARV's failure to raise the Rule 9(b) pleading deficiency in its motion to dismiss could constitute waiver. Compareid., withBeneficial Franchise Co., Inc. v. Bank One, N.A., No. 00 C 2441, 2001 WL 935606, at *2 (N.D. Ill. Aug. 15, 2001). Additionally, the final statement of the defense alleging that the RV was “new” is simply a denial of paragraph ten in Plaintiff's Second Amended Complaint that the RV was allegedly not new since it was used as a demo in RV shows. [DE ...


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