Equal Employment Opportunity Commission v. Joe Ryan Enterprises, Inc.
MEMORANDUM OPINION AND ORDER that The EEOC's 15 Motion to Strike or Alternatively to Dismiss Defendant's Affirmative Defenses is DENIED; that the EEOC's 15 Motion to Dismiss is DENIED; that The EEOC's 22 Motion to Dismiss A nswer and Counterclaim is GRANTED and Joe Ryan's 21 Amended Answer is STRICKEN for failure to obtain leave of Court prior to filing it, Fed. R. Civ. P. 15; that Joe Ryan's 19 motion to amend its pleadings is GRANTED; that Joe Ryan shall file an Amended Answer on or before July 20, 2012. Signed by Honorable Judge Mark E. Fuller on 7/9/2012. (Attachments: # 1 Civil Appeals Checklist)(cc, )
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
JOE RYAN ENTERPRISES, INC., d/b/a
Joe Ryan Trucking,
CASE NO. 3:11-cv-795-MEF
[WO – Publish]
MEMORANDUM OPINION AND ORDER
This agency-initiated sex discrimination lawsuit is before the Court on Plaintiff Equal
Employment Opportunity Commission’s (“EEOC”) Motion to Strike or Alternatively to
Dismiss (Doc. # 15) Defendant Joe Ryan Enterprises, Inc.’s (“Joe Ryan Trucking”)
affirmative defenses. Having considered the fully-briefed motion and the relevant law, the
Court finds that EEOC’s motion is due to be DENIED.
I. FACTUAL BACKGROUND
In September of 2011, the EEOC commenced this lawsuit under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). The Amended Complaint (Doc.
# 7) alleges that, beginning in 2005, Joe Ryan Trucking discriminated against former
employee (and charging party) Rhonda Brown and other female employees, subjecting them
to sexually harassing conditions and a hostile work environment. Ms. Brown was allegedly
constructively discharged when the sexual harassment became so intolerable that she was
compelled to resign in August of 2009.
Joe Ryan Trucking filed an Answer asserting numerous affirmative defenses. (Doc.
# 10, at ¶¶ 14-28.) The EEOC’s motion asks the Court to strike all of them.
II. STANDARD OF REVIEW
“The Federal Rules of Civil Procedure provide that ‘the court may order stricken from
any pleading any insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.’” Stephens v. Ga. Dep’t of Transp., 134 F. App’x 320, 322-23 (11th Cir.
2005) (quoting Fed. R. Civ. P. 12(f)). A Rule 12(f) motion to strike an insufficient
affirmative defense is proper when the defense is insufficient as a matter of law. Equal
Emp’t Opportunity Comm’n v. First Nat. Bank of Jackson, 614 F.2d 1004, 1008 (5th Cir.
1980) (striking affirmative defense pursuant to Rule 12(f) when the defense was deemed
insufficient as a matter of law).1 Despite the fact that judges enjoy discretion to strike
pleadings pursuant to Rule 12(f), “striking a party’s pleading . . . is an extreme and
disfavored measure.” See BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir.
2007); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.3d 1045,
1057 (5th Cir. 1982) (stating that “motions to strike a defense are generally disfavored”); see
also 5C C. Wright & A. Miller, Federal Practice and Procedure 3d § 1380 (2004) (stating
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down
prior to the close of business on September 30, 1981.
that “motions under Rule 12(f) are viewed with disfavor by the federal courts and are
The appropriate pleading standard for affirmative defenses is, at present, an unsolved
mystery in the post-Twombly/Iqbal world. Although no court of appeals has decided the
issue one way or the other, there is a growing corpus of district court decisions to guide this
Court’s analysis. This Court joins the growing minority of district courts to have held that
the Twombly/Iqbal plausibility pleading standard does not apply to affirmative defenses.
The first reason for not applying Twombly/Iqbal to affirmative defenses is textual.
Rule 8 is the bedrock of modern notice pleading, and one consistency to be found in the
Supreme Court’s decisions – from Conley v. Gibson through Aschcroft v. Iqbal – is a
steadfast fidelity to the text of Rule 8. For complaints, Rule 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is entitled to relief[.]” (emphasis
added). In contrast, Rule 8(b)(1), which governs the pleading of defenses generally, states
that a responding party must “state in short and plain terms its defenses[.]” And Rule 8(c)(1)
only requires a party to “affirmatively state” any affirmative defenses. District courts that
have not superimposed Twombly/Iqbal on affirmative defenses have found the lack of any
“showing” language to be significant, and justifiably so. See, e.g., Lopez v. Asmar’s
Mediterranean Food, Inc., No. 1:10cv1218JCC, 2011 WL 98573, at *2 (E.D. Va. Jan. 10,
2011) (stating that the court is “bound to apply the relevant rules of civil procedure as
written” and finding that the lack of any “showing” language in Rules 8(b)(1)(A) or 8(c)(1)
meant that Twombly/Iqbal’s plausibility pleading did not apply); Falley v. Friends Univ., 787
F. Supp. 2d 1255, 1258 (D. Kan. 2011) (identifying the “significant” linguistic differences
between the various Rule 8 subsections and refusing to apply Twombly/Iqbal to affirmative
defenses); Figueroa v. Marshalls of CA, LLC, No. 11cv6813RGK, 2012 WL 1424400, at *1
(C.D. Cal. April 23, 2012).
The Supreme Court in Twombly did not find its plausibility pleading standard in a
magician’s hat. Rather, it was appropriately pulled from the above-discussed unique
language of Rule 8(a)(2). 550 U.S. at 555 (“Federal Rule of Civil Procedure 8(a)(2) requires
only ‘a short and plain statement of the claim showing that the pleader is entitled to relief[.]’”
(quoting Fed. R. Civ. P. 8(a)(2)). The majority in Twombly then zeroed in on the specific
language at issue: “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . .” Id. at 555 (quoting Fed. R. Civ. P. 8(a)(2)).
As if this is not enough, the text of footnote 3 drives the point home. Addressing the
dissent’s argument that the Federal Rules dispensed with fact pleading altogether, the Court
turned straight to the relevant language: “Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.” Id. at 555 n.3 (emphasis added). Thus, a
plaintiff’s obligations to plead facts in a complaint is drawn from language found within Rule
8(a)(2) for complaints, but not within Rules 8(b)(1) or 8(c)(1) for answers and affirmative
Furthermore, to artificially supply Rules 8(b)(1) and 8(c)(1) with the unique language
of Rule 8(a)(2) requiring a “showing” is to contravene well-established principles of statutory
construction, which have been found applicable to interpreting the Federal Rules of Civil
Procedure. See Business Guides v. Chromatic Comms. Enter., Inc., 498 U.S. 533, 540-41
(1991) (applying ordinary principles of statutory construction to Federal Rules of Civil
Procedure). The rule of interpretation of expressio unius est exclusio alterius applies with
force in this case. If the drafters of Rule 8 intended for defendants to plead affirmative
defenses with the factual specificity required of complaints, they would have included the
same language requiring a “showing” of “entitle[ment] to relief” in the subsections governing
answers and affirmative defenses. That Rules 8(b) and 8(c) contain no such language should
end a court’s inquiry. Business Guides, 498 U.S. at 540-41 (“As with a statute, our inquiry
is complete if we find the text of the Rule to be clear and unambiguous.”).
Many courts that have been persuaded to apply Twombly/Iqbal to affirmative defenses
have looked to reasons beyond the plain language of Rule 8. See, e.g., Racick v. Dominion
Law Assocs., 270 F.R.D. 228, 234 (E.D.N.C. 2010) (concluding that “‘the considerations of
fairness, common sense and litigation efficiency underlying Twombly and Iqbal’ mandate
that the same pleading requirements apply equally to complaints and affirmative defenses”
(quoting Palmer v. Oakland Farms, Inc., No. 5:10cv29, 2010 WL 2605179, at *5 (W.D. Va.
June 24, 2010))). For example, one common argument is a questioning of why there should
be two different pleading standards. See, e.g., Castillo v. Roche Labs., Inc., No. 10cv20876,
2010 WL 3027726 (S.D. Fla. Aug. 2, 2010) (finding that it would be nonsensical “‘to require
a plaintiff to provide [the] defendant with enough notice that there is a plausible, factual basis
for . . . [his] claim under one pleading standard and then permit the defendant under another
pleading standard simply to suggest that some defense may possibly apply in the case.’”
(quoting Palmer, 2010 WL 2605179, at *4)). As stated above, this Court is of the opinion
that such policy considerations are foreclosed when the language of the Rule is clear. See
Business Guides, 498 U.S. at 540-41. The judiciary is commissioned to interpret the Rules
as they are written, not to re-draft them when it may be convenient.2
Finally, both sides of the debate have cited Form 30 in support of their position.
Compare Aguilar v. City Lights of China Rest., Inc., No. 11cv2416DKC, 2011 WL 5118325,
at *3 (D. Md. Oct. 24, 2011) (“Additionally, Form 30, appended to the Federal Rules
pursuant to Rule 84, strongly suggests that bare-bones assertions of at least some affirmative
With that said, many of the district courts to have rejected Twombly/Iqbal in the
affirmative defense setting have found sound reasons to hold responding defendants to a lower
pleading standard for affirmative defenses. The first such reason concerns disparate amount of
time a plaintiff has to research and draft a complaint compared to the amount of time for a
defendant to research and draft an answer. The former can be measured in years while the latter
is often measured in days. See, e.g., Floridia v. DLT 3 Girls, Inc., No. 4:11cv3624, 2012 WL
1565533, at *2 (S.D. Tex. May 2, 2012) (stating that “a different standard for plaintiffs and
defendants is sensible, given that defendants have only 21 days within which to serve an
answer”); Meas v. CVS Pharmacy, Inc., No. 11cv823JM, 2011 WL 2837432, at *3 (S.D. Cal.
July 14, 2011) (“From a practical point of view, a plaintiff may investigate a potential claim for
weeks, months, or even years before filing a complaint.”).
defenses will not suffice, as the Form’s illustration of a statute of limitations’ defense sets
forth not only the name of the affirmative defense, but also facts in support of it.” (emphasis
added)) with Tiscareno v. Frasier, No. 2:07cv336, 2012 WL 1377886, at *15 (D. Utah April
19, 2012) (observing that Form 30 allows an affirmative Rule 12(b)(6) defense to be pleaded
with a one-sentence conclusory statement and concluding that this “suggests that the
heightened Twombly/Iqbal standard was not intended to be extended to affirmative
defenses”). Form 30’s suggestion for a Rule 12(b)(6) affirmative defense could not be more
bare-bones: “The complaint fails to state a claim upon which relief can be granted.” Fed.
R. Civ. P. Form 30 (2012). If Twombly/Iqbal were applied to affirmative defenses, it would
be difficult to imagine any affirmative defense that defies more strongly Twombly’s
instruction to plead “more than labels and conclusions” than Form 30’s example of a Rule
12(b)(6) defense. Twombly, 550 U.S. at 555. The Form’s example of a statute of limitations
defense is qualitatively no different: “The plaintiff’s claim is barred by the statute of
limitations because it arose more than ___ years before this action was commenced.” Fed.
R. Civ. P. Form 30 (2012). The reference to a number of years has been interpreted by some
courts as an elaboration of “facts” in support of the defense. This is patently not the case.
The language of the Form suggests stating that the action “arose more than ____ years”
before the case was commenced. Id. (emphasis added). The use of “more than” does not call
for the pleader to state when the action factually arose; it only calls for the pleader to state
the relevant limitations period governing the plaintiff’s claim. This is a legal conclusion,
which is, again, insufficient under Twombly/Iqbal. See Iqbal, 556 U.S. at 678 (“[T]he tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”). That both defenses listed in Form 30 would
be laughed out of court under Twombly/Iqbal impresses strongly against extracting the
principles from those cases and applying them in the different context of affirmative
Having concluded that Twombly/Iqbal do not apply to the pleading of affirmative
defenses, the Court reverts to the extant Eleventh Circuit test: whether the defendant’s
pleading of its affirmative defenses provides the plaintiff with fair notice. See Pulliam v.
Tallapoosa Cnty. Jail, 185 F.3d 1182, 1185 (11th Cir. 1999); Automated Med. Labs., Inc. v.
Armour Pharm. Co., 629 F.2d 1118, 1122 (5th Cir. 1980) (“Although absolute specificity in
pleading is not required, fair notice of the affirmative defense is.”); see also O’Hagan v.
M&T Marine Group, LLC, 424 F. App’x 811, 815 n.5 (11th Cir. 2011).3
Thus, the Court reviews Joe Ryan’s affirmative defenses to determine whether they
provide fair notice to the EEOC and whether any are insufficient as a matter of law.
Although many of Joe Ryan’s affirmative defenses appear either legally inapplicable to the
Title VII setting or even patently frivolous given the allegations of the Amended Complaint,
It is noteworthy that the Eleventh Circuit, albeit in a footnote in an unpublished
decision, has expressly reiterated the “fair notice” test without comment post-Twombly/Iqbal.
the Court declines, at this time, to strike any of them.4 As mentioned above, motions to strike
pleadings under Rule 12(f) are disfavored, and the Court is hesitant to create precedent
whereby it is obligated to pick through a defendant’s affirmative defenses at this stage of the
litigation. The parties control the discovery process, and the EEOC, as a sophisticated party,
should be able to hone in on those affirmative defenses of Joe Ryan that may actually become
relevant in a dispositive motion or at trial.
For the reasons stated above, it is ORDERED:
The EEOC’s Motion to Strike or Alternatively to Dismiss Defendant’s
Affirmative Defenses (Doc. # 15) is DENIED;
The EEOC’s Motion to Dismiss (Doc. # 15) is DENIED;
The EEOC’s Motion to Dismiss Answer and Counterclaim (Doc. # 22) is
GRANTED and Joe Ryan’s Amended Answer (Doc. # 21) is STRICKEN for
failure to obtain leave of Court prior to filing it, Fed. R. Civ. P. 15; and,
Joe Ryan’s motion to amend its pleadings (Doc. # 19, at 8) is GRANTED. Joe
Ryan shall file an Amended Answer on or before July 20, 2012.
DONE this 9th day of July, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
The Court, however, will grant Joe Ryan’s motion to amend its answer (Doc. # 19, at
8.) In drafting an Amended Answer, counsel for Joe Ryan is reminded of her obligations under
Fed. R. Civ. P. 11(b)(2) not to assert any defenses or counterclaims unwarranted by existing law.
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