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Bell v. Ardagh Group S.A.

United States District Court, S.D. Indiana, Indianapolis Division

September 4, 2019

ANTOINETTE TAKIA BELL, Plaintiff,
v.
ARDAGH GROUP S.A., Defendant.

          REPORT AND RECOMMENDATION

          MARK J. DINSMORE, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's motion to strike Defendant's affirmative defenses. [Dkt. 19 & Dkt. 27.] Plaintiff seeks to strike and summarily dismiss Defendant's affirmative defense Nos. 1 through 12. Id. On August 19, 2019, District Judge Tanya Walton Pratt designated the undersigned Magistrate Judge to issue a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [Dkt. 32.] For the reasons set forth below, the Magistrate Judge recommends Plaintiff's Motion be DENIED.

         I. Background

         Plaintiff alleges in her complaint that she worked as an Accounts Payable Manager for Defendant. [Dkt. 1.] Plaintiff alleges that she received a raise, a positive evaluation, and a company bonus in March 2018. [Dkt. 1 at 3.] In May 2018, however, Plaintiff's employment was terminated for the stated reason that she was “engaging in serious accounting irregularities, such as deleting Accounts Payable invoices.” Id. Plaintiff claims her termination was a pretext for race discrimination in violation of Title VII and Section 1981. Id. Plaintiff also asserts a defamation claim under Indiana law, alleging that Defendant made false claims regarding her termination. Id. Finally, Plaintiff claims that Defendant violated her rights under Indiana Code Title 27 Insurance Article 8 § 27-8-15-31.1, by terminating her employee medical benefits. Id. In its Amended Answer, Defendant asserted twelve affirmative defenses. [Dkt. 14.] Plaintiff moves to strike these affirmative defenses. [Dkt. 19 and Dkt. 27.]

         II. Legal Standard

         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 appropriate when they expedite matters by “remov[ing] unnecessary clutter from the case.” Heller Fin., Inc. v. Midwhey Power Co., 883 F.2d 1286, 1294 (7th Cir. 1989). A court may thus strike defenses that are “insufficient on the face of the pleadings, ” that fail “as a matter of law, ” or that are “legally insufficient.” Id. at 1294. District courts have considerable discretion in ruling on motions to strike. See Delta Consulting Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009).

         III. Discussion

         Plaintiff moves to strike and dismiss Defendant's affirmative defenses, arguing that each fails to provide enough factual support to give Plaintiff fair notice of how Defendant plans to prove the defenses at trial. [Dkt. 19 and Dkt. 27.] While defenses comprising “nothing but bare bones conclusory allegations” are deficient, Heller, 883 F.2d at 1295, the specific detail of factual material that a defense must include is unclear. Id. The Seventh Circuit has yet to determine whether the stringent pleading standard for complaints outlined in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, (2009), also applies to affirmative defenses.[1] The notice pleading standard requires a defendant to put plaintiff on notice of the defenses asserted, but does not require the assertion of “specific facts or legal theories.” Beanstalk Group, Inc. v. AM Gen. Corp., 283 F.3d 856, 868 (7th Cir. 2002). Even if a defense is insufficient, the Court must determine whether to strike the defense with or without prejudice. “Courts strike defenses that are inadequately pleaded without prejudice so that defendants can fix any shortcomings of inadequately pleaded defenses. On the other hand, Courts strike with prejudice defenses that are not appropriately pleaded as affirmative defenses or for which it is impossible for the defendant to prove a set of facts in support.” Hayes v. Agilysys, Inc., 2009 WL 891832, at *1 (N.D. Ill. Mar. 30, 2009).

         1. Failure to State a Claim: Defense No. 1

         Plaintiff argues that the Court should strike Defendant's affirmative defense No. 1 because Defendant has not alleged how Plaintiff failed to state a claim. [Dkt. 14 at 2.] The Court will not strike the defense on this ground. The Rules allow parties to raise the defense of “failure to state a claim upon which relief can be granted” in the responsive pleading. Fed.R.Civ.P. 12(h)(2)(A). It is a non-waivable defense that may be asserted at any time. The defense in a responsive pleading is a mere nullity; without some factual or legal support, it does not affect the outcome of the proceedings. Typically, parties ignore this assertion in a pleading as harmless. See e.g., Malibu Media, LLC v. Julien, No. 1:12-CV-01730-TWP-MJD, 2013 WL 5274262, at 1 (S.D. Ind. 2013). The Court will not rule on the merits of Defendant's Rule 12(b)(6) defense unless and until Defendant has properly raised it by motion and provided facts and/or legal authority to support it. However, striking it would serve no purpose; accordingly, the Magistrate Judge recommends Plaintiff's motion to strike Defendant's affirmative defense No. 1 be DENIED.

         2. Time Barred: Defense No. 2

         Defendant's affirmative defense No. 2 states that Plaintiff's claims are time-barred because they are based on conduct that occurred more than 300 days before Plaintiff filed her charge of discrimination with the EEOC. [Dkt. 14.] A Title VII plaintiff must file a charge with the EEOC within 300 days of the alleged discrimination. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). If a plaintiff misses this deadline, the charge is untimely, and the plaintiff cannot proceed with litigation in federal court. Id. A timely-filed charge is a “prerequisite to bringing a Title VII . . . claim.” See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Failure to meet this prerequisite is an affirmative defense. Volovsek v. Wis. Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 687 (7th Cir. 2003). While Plaintiff argues “whether the claims were filed October 4, 2018, or accepted October 24, 2018, the additional 20 days would still put Plaintiff in the appropriate 180 or 300-day lookback period, ” [Dkt. 31 at 3], this is an argument on the factual merits of the defense, which is not appropriate for a motion to strike. By referencing the 300-day EEOC filing requirement, Defendant's affirmative defense No. 2 adequately notifies Plaintiff which administrative and statutory prerequisite is at issue. Accordingly, the Magistrate Judge recommends Plaintiff's motion to strike Defendant's affirmative defense No. 2 be DENIED.

         3. Lack of Administrative Process: No. 3

         Plaintiff moves to strike Defendant's affirmative defense No. 3, which alleges that Defendant was denied the opportunity to participate in the EEOC administrative process because Plaintiff misstated Defendant's address on her EEOC Charge. [Dkt. 14 at 8.] Plaintiff claims that the EEOC notified Defendant, but Defendant had “failed to participate in the administrative process.” [Dkt. 31 at 4.] Plaintiff also argues that the EEOC changed to an electronic notifications system and that Defendant received the notice of the Charge electronically, but failed to respond. Id. Again, a motion to strike is not the proper vehicle for addressing the factual merits of a defense. Defendant has put Plaintiff on fair notice of its defense that her claims are barred from consideration in this lawsuit because ...


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