United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on a Motion to Strike Affirmative
Defenses [DE 14], filed by Plaintiff on January 17, 2018.
Plaintiff requests that the Court strike all of
Defendant's affirmative defenses as insufficient.
Defendant filed a response on January 26, 2018, and Plaintiff
filed a reply on February 1, 2018.
Standard of Review
Rule of Civil Procedure 12(f) provides that a “court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). Motions to strike are
generally disfavored, but when striking portions of a
pleading “remove[s] unnecessary clutter from the case,
” the motion may “serve to expedite, not
delay.” Heller Fin. Inc. v. Midwhey Powder Co.,
Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Affirmative
defenses that “present substantial questions of law or
fact” will not be stricken. United States v. 416.81
Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975).
Accordingly, motions to strike affirmative defenses
“will not be granted unless it appears to a certainty
that plaintiffs would succeed despite any state of facts
which could be proved in support of the defense.”
Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th
Cir. 1991). However, because affirmative defenses are
pleadings, they must meet all pleading requirements of the
Federal Rules of Civil Procedure, including “set[ting]
forth a ‘short and plain statement' of the
defense.” Heller, 883 F.2d at 1294 (quoting
Fed.R.Civ.P. 8(a)). “[B]are bones conclusory
allegations” which “omit any short and plain
statement of facts and fail totally to allege the necessary
elements of the alleged claims” will not meet this
standard and may be stricken. Id. at 1295.
Ultimately, whether to strike material under Rule 12(f) is
within the sound discretion of the court. Talbot v.
Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th
Complaint alleges damages to Plaintiff's property arising
from a fire at Defendant's property. In the instant
Motion, Plaintiff argues that the Court should strike all
eighteen of Defendant's affirmative defenses.
First Affirmative Defense
first affirmative defense is a blanket denial of “[a]ny
allegation” in the Complaint not specifically addressed
earlier in the pleading. An affirmative defense is one that
defeats liability for all or some of a plaintiff's claims
even if the plaintiff can prove all the elements of those
claims. See E.E.O.C. v. Mach Mining, LLC, 738 F.3d
171, 184 (7th Cir. 2013) (“The essence of an
affirmative defense is that it assumes the plaintiff can
prove its factual allegations[, but it] . . . raises
additional facts or legal arguments that defeat liability
nonetheless.”); see also Defense, affirmative,
Black's Law Dictionary (8th ed. 1999) (“An
affirmative defense asserts “facts and arguments which,
if true, will defeat the Plaintiff's . . . claim,
even if all the allegations in the complaint are
true.” (emphasis added)). A denial of an
allegation in a Complaint is by definition not an affirmative
defense; therefore, this item will be stricken.
Second, Fifth, Seventh, and Eighth Affirmative
these defenses rests on some alleged act or omission on the
part of Plaintiff: that he “may have assumed/incurred
the risk, ” that he “may have been the proximate
cause of the subject incident, ” that he “may
have failed to mitigate damages, ” and that his
recovery may be barred due to his own fault by operation of
the Indiana Comparative Fault Act. Plaintiff argues that
these are nothing but bare bones, conclusory allegations.
Federal Rule of Civil Procedure 8(c) requires that the party
responding to a complaint state the affirmative defenses that
it intends to raise. See Fed. R. Civ. P. 8(c).
However, Rule 8 also requires that in addition to merely
stating the affirmative defense, the party raising it must
meet the pleading requirements of the Federal Rules of Civil
Procedure, including “set[ting] forth a ‘short
and plain statement' of the defense . . . alleg[ing] the
necessary elements of the alleged claims. Heller,
883 F.2d at 1294 (quoting Fed.R.Civ.P. 8(a)). The familiar
pleading requirements for a complaint come from
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), which
specify that a complaint must provide “a short and
plain statement of the claim showing that the pleader is
entitled to relief, ” see Fed. R. Civ. P.
8(a)(2), and “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570).
district courts are divided on the question of whether an
affirmative defense must comply with
Twombly and Iqbal's heightened pleading
standard. See Cottle v. Falcon Holdings Mgmt., LLC,
No. 11-95, 2012 U.S. Dist. LEXIS 10478, *3-4 (N.D. Ind. Jan.
30, 2012) (collecting cases on both sides); Husainy v.
Allied Collection Serv., Inc., No. 15-95, 2016 U.S.
Dist. LEXIS 54073, *2 (N.D. Ind. Apr. 22, 2016) (“The
Seventh Circuit Court of Appeals has not yet decided whether
the pleading standard for a complaint set forth in
[Twombly and Iqbal] applies to ...
affirmative defenses.”). Courts in the Northern
District of Indiana have generally held that an affirmative
defense need not satisfy Twombly and Iqbal.
See Cottle, 2012 U.S. Dist. LEXIS 10478 at *5
(“This Court agrees with those cases declining to apply
the ‘plausibility' standard of Iqbal and
Twombly to affirmative defenses.”);
Fletcher v. Hoeppner Wagner & Evans, LLP, No.
14-231, 2015 U.S. Dist. LEXIS 153057, *19 (N.D. Ind. Nov. 12,
2015) (“the Court declines to apply to affirmative
defenses the plausibility standard applied in Iqbal
and Twombly”); Husainy, 2016 U.S.
Dist. LEXIS 54073 at *2 (“This Court continues to agree
with those cases declining to apply . . . Iqbal and
Twombly to affirmative defenses.”). Under this
view, an affirmative defense need not satisfy
Twombly and Iqbal's plausibility
standard, but the affirmative defense must still contain a
“short and plain statement” of the defense
itself. Heller, 883 F.2d at 1294. Affirmative
defenses must be stricken if they contain “nothing but
bare bones conclusory allegations” without
“any short and plain statement of
facts.” Id. at 1295 (emphasis added). In
essence, an affirmative defense must “be adequately
pled to put a plaintiff on notice of the defense.”
Cottle, 2012 U.S. Dist. LEXIS 10478 at *12;
Design Basics, LLC v. Windsor Homes, Inc., No.
16-51, 2016 U.S. Dist. LEXIS 91910, *8 (N.D. Ind. July 14,
2016) (denying motion to strike affirmative defenses because
the affirmative defenses were stated “in short and
plain terms” and “sufficiently put [the
plaintiff] on notice of the affirmative defenses”);
accord Bielfeldt v. Bourazak, No. 15-1419, 2016 U.S.
Dist. LEXIS 46986, *6 (C.D. Ill. Apr. 7, 2016)
(“Federal Rule of Civil Procedure 8 requires for
affirmative defenses, at a minimum, fair notice of a
in Defendant's pleading does he specify any act or
omission on the part of Plaintiff, providing Plaintiff with
no notice of how he may have assumed risk, caused the
incident, or failed to mitigate damages. Nor does it suggest
how the Indiana Comparative Fault Act actually applies.
Therefore, the Court finds that the second, fifth, seventh,
and eighth affirmative defenses must be stricken because they
lack factual support and do not include the necessary
elements to support the allegations.
Third Affirmative Defense
third affirmative defense, Defendant “reserves the
right to supplement and/or amend these defenses as discovery
and investigation continue.” The right to amend
pleadings is governed by Federal Rule of Civil Procedure 15
and by the Court's scheduling orders, rendering this
statement essentially meaningless. In addition,
Defendant's reservation of rights ...