United States District Court, S.D. Indiana, Indianapolis Division
REPORT AND RECOMMENDATION
J. DINSMORE, UNITED STATES MAGISTRATE JUDGE
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
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.
“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
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. 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).
Failure to State a Claim: Defense No. 1
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.
Time Barred: Defense No. 2
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.
Lack of Administrative Process: No. 3
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 ...