Equal Employment Opportunity Commission v. Southern Haulers, LLC
ORDER denying 20 Motion to Strike or, alternatively, to dismiss certain affirmative defenses asserted by Southern Haulers. Signed by Magistrate Judge Katherine P. Nelson on 3/14/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN HAULERS, LLC,
CIVIL ACTION NO. 11-00564-N
This action is before the Court on a motion (doc. 20) filed by the plaintiff, the
Equal Employment Opportunity Commission (“EEOC”), to strike, or alternatively
dismiss, certain affirmative defenses asserted by Southern Haulers, LLC (“Southern
Haulers”), the defendant herein.1 Upon consideration of the motion, Southern Haulers’
response in opposition thereto (doc. 28), the EEOC’s reply (doc. 29) and all other
pertinent portions of this record, the Court concludes that the EEOC’s motion is due to be
STANDARD OF REVIEW
“An affirmative defense is generally a defense that, if established, requires
judgment for the defendant even if the plaintiff can prove his case by a preponderance
of the evidence.” Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir.1999).
This action has been referred to the undersigned Magistrate Judge to conduct all proceedings
and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.Civ.P. 73 (doc. 19) and
pursuant to the consent of the parties (doc. 18).
“An affirmative defense raises matters extraneous to the plaintiff's prima facie case; as
such, they are derived from the common law plea of ‘confession and avoidance.’ ”
Flav–O–Rich, Inc. v. Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir.1998)
(quoting 5 C. Wright and A. Miller, Federal Practice and Procedure § 1270 at 289
(1969)). Federal Rule of Civil Procedure 12(f) provides for the striking of insufficient
affirmative defenses. Fed. R. Civ. P. 12(f) (“[T]he court may order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent or
scandalous matter.”) “A defense is insufficient as a matter of law only if: (1) on the
face of the pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of
law.” Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC, 2010 WL 5393265, at
*2 (S.D.Fla. Dec.21, 2010) (quoting Microsoft Corp. v. Jessee's Computers & Repair,
Inc., 211 F.R.D. 681, 683 (M.D.Fla.2002)). Although an affirmative defense may be
stricken if it is legally insufficient, striking a defense is a “ ‘drastic remedy [,]’ which
is disfavored by the courts.” Thompson v. Kindred Nursing Centers East, LLC, 211
F.Supp.2d 1345, 1348 (M.D.Fla.2002) (quoting Augustus v. Bd. of Public Instruction
of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir.1962) and Poston v. American
President Lines Ltd., 452 F.Supp. 568, 570 (S.D.Fla.1978)). “An affirmative defense
will be held insufficient as a matter of law only if it appears that the Defendant cannot
succeed under any set of facts which it could prove.” Florida Software Sys., Inc. v.
Columbia/HCA Healthcare Corp., 1999 WL 781812, at *1 (M.D.Fla. Sept.16, 1999).
Finally, “a court will not exercise its discretion under the rule to strike a pleading
unless the matter sought to be omitted has no possible relationship to the controversy,
may confuse the issues, or otherwise prejudice a party.” Id.
The EEOC challenges Southern Haulers’ affirmative defenses set forth in
paragraphs three, four and nine through twenty-eight of the answer to the complaint
(doc. 10) as either improper or insufficiently pled. Although the EEOC acknowledges
that, pursuant to Rule 8(b)(1)(A), a defendant need only “state in short and plain terms
the defenses to each claim asserted against it,” it then argues that “Rule 8 requires that
pleadings be plausible on their face, include specific factual matters, and do more than
assert mere “labels and conclusions.” (Doc. 20 at n. 1, quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 553 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (expounding
Twombly standard to all civil actions)).
The EEOC further argues that Southern
Haulers’ affirmative defenses constitute no more than “shotgun pleading” which “should
be discouraged.” (Doc. 20 at 13).
Although not raised by the parties, as a threshold matter the undersigned notes that
that the EEOC’s motion to strike is untimely. Rule 12(f) requires that such a motion be
filed within 21 days of service of the pleading being attacked.2 The EEOC’s motion was
filed 25 days after the answer was electronically served. See, Sakolsky v. Rubin
Fed. R. Civ. P. 12(f) provides as follows:
The court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter. The court may act: (1) on its own; or (2) 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.
Memorial Chapel, LLC., 2007 WL 3197530 (S.D. Fla., Oct. 26, 2007). Since it may do
so on its own under Rule 12(f)(1), the Court will nevertheless address the motion to strike
even though it is untimely.
Defendant’s affirmative defenses in this case are neither insufficient nor
“immaterial, impertinent, or scandalous.” Fed.R.Civ.P. 12(f). The sole issue in this case
is whether the defendant, Southern Haulers, “denied equal employment opportunities to
Mr. Alfonzo Williams and other African-American applicants by refusing to consider
them for truck driving positions at its Brewton, Alabama facility.” (Doc. 20 at 1). The
challenged affirmative defenses asserted by Southern Haulers clearly relate directly to
plaintiffs’ single claim. See Doc. 10 at 6-13.3
In addition, The EEOC acknowledges that a defendant must only give “fair notice
of the defense” and such requirement is met “if the defendant sufficiently articulates the
defense so that the plaintiff is not a victim of unfair surprise.” (Doc. 20, quoting Barna
Conshipping, S.L. v. 1,800 Metric Tons, More, of Abandoned Steel, 2009 WL 1211334,
*1 (S.D. Ala., May 4, 2009)). The EEOC’s arguments belie any contention that it is
somehow unable to “respond, undertake discovery and prepare for trial,” the essential
purpose of such notice pleading. Barna, 2009 WL 1211334 at *1, citing ., APR Energy,
LLC v. Pakistan Power Resources, LLC, 2009 WL 93061, *1 (M.D. Fla. Jan. 14, 2009).
The “affirmative defenses” contained in defendant’s answer to the complaint include, in sum:
failure to satisfy conditions precedent, failure to exhaust administrative remedies, statute of limitations,
claims exceed scope of the EEOC charge, failure to mitigate damages, waiver, and estoppel. (Doc. 10 at
pp. 6-13). Some of the listed defenses do not constitute affirmative defenses, because they dispute
elements of Plaintiffs' case-in-chief: Nevertheless, the defenses apprise Plaintiffs of what Defendants will
argue, which, it appears, is all the Eleventh Circuit requires. See Hassan, 842 F.2d at 263.
To the extent any of these defenses might be deemed “redundant” to defendant’s denial
of plaintiffs’ claims, the EEOC has neither alleged nor established that it has been
prejudiced by it’s assertion in this case. See e.g. Carlson Corp/ Southeast v. School Bd.
Of Seminole County, 778 F.Supp. 518, 519 (M.D. Fla. 1991)(“Motions to strike on the
grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored,
often being considered ‘time wasters,’ and will usually be denied unless the allegations
have no possible relation to the controversy and may cause prejudice to one of the
Rule 8(b)(1)(A) provides that, in general, when responding to a pleading a party
must “state in short and plain terms its defenses to each claim asserted against it.” Fed. R.
Civ. P. 8. Rule 8(c) specifically addresses affirmative defenses, requiring parties to
“affirmatively state any avoidance or affirmative defenses, including: accord and
satisfaction; arbitration and award; assumption of risk....” Id. Twombly was decided
under Rule 8(a), 127 S. Ct. at 1965-66 & n.3, and the plaintiff has identified no case
extending it to Rule 8(b) or (c). Westbrook v. Paragon Sys., 2007 U.S. Dist. LEXIS
88490, *2 (S.D. Ala. Nov. 29, 2007). The Eleventh Circuit has not extended the pleading
requirements of Rule 8(a) to affirmative defenses and has stressed that providing notice is
the purpose of Rule 8(c): “[t]he purpose of Rule 8(c) is simply to guarantee that the
opposing party has notice of any additional issue that may be raised at trial so that he or
As was true in Carlson, the EEOC’s motion to strike or dismiss certain defenses is a “time
waster” because the EEOC has failed to establish that the affirmative defenses at issue either “have no
possible relation to the controversy” or “may cause prejudice to one of the parties.” 778 F.Supp. at 519.
she is prepared to properly litigate it.” Hassan v. USPS, 842 F.2d 260, 263 (11th
Cir.1988). (“When a plaintiff has notice that an affirmative defense will be raised at trial,
the failure of defendant to plead the affirmative defense does not prejudice the plaintiff,
and it is not error for the district court to hear evidence on the issue.”).
Finally, there exists no basis to challenge Southern Haulers’ affirmative defenses
as “shotgun” pleadings. “[T]here is no such shotgun pleading unless the complaint
contains multiple claims and the affirmative defenses fail to distinguish among them, and
such a result is usually an unfortunate byproduct of a shotgun complaint.” Westbrook,
2007 U.S. Dist. LEXIS 88490 at *2, citing, Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th
Cir. 2001)(“With minor exception, none of the affirmative defenses responded to a
particular count of the complaint; rather, the affirmative defenses addressed the complaint
as a whole, as if each count was like every other count.”); Anderson v. District Board of
Trustees, 77 F.3d 364, 367 (11th Cir. 1996). As stated previously, the EEOC’s complaint,
asserts a single claim of discriminatory hiring practices against a single defendant,
Southern Haulers. Consequently, there is no question regarding where each affirmative
defense is directed. The EEOC’s argument to the contrary is without substance or merit.
For the reasons stated above, it is ORDERED that the EEOC’s motion to strike
or, alternatively, to dismiss certain affirmative defenses asserted by Southern Haulers
(doc. 20) is hereby DENIED.
DONE this 14th day of March, 2012.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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