United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge.
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 and his motion to strike became ripe on
March 5, 2018 [DE 36], when Defendants filed their
Sur-Reply. [DE 42].
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.
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.”
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.
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
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.
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
Not Appropriately Stated as an Affirmative Defense
Failure to State a Claim
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). “‘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, ¶
Failure to Plead Fraud with Specificity
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 ...