Virata v. Zemke et al
Filing
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ORDER granting in part and denying in part 49 Motion to Strike 42 Answer to Crossclaim, see PDF document for details. Signed by Judge David G Campbell on 10/4/11.(LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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No. CV11-0988-PHX-DGC
Luis Virata,
Plaintiff,
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vs.
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ORDER
Eric Zemke, et al.,
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Defendants.
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Defendant/Cross-Claimant Revenue Enhancement Specialists LLC alleged the
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following theories for relief against Defendant/Cross-Defendants Steve Wallace and
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ACLS Pegasus, LLC: “Fraud; Breach of Contract; Breach of the Covenant of Good Faith
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and Fair Dealing; Deceptive or Unfair Trade Practices; Money Had and Received;
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Wrongful Act of Another; Unjust Enrichment; Declaratory Relief; Conversion; Tortious
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Interference With Contractual Relations; [and] Rescission/Restitution.” Doc. 35, at 1.
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Cross-Claimant has moved to strike, under Rule 12(f) of the Federal Rules of Civil
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Procedure, six of the affirmative defenses raised by Defendants/Cross-Defendants in their
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answer. Doc. 49. The six affirmative defenses are (1) intervening cause, (2) supervening
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cause, (3) contributory negligence, (4) lack of consideration, (5) lack of privity, and
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(6) respondeat superior. Doc. 49. The motion has been fully briefed. Docs. 49, 50, 52.
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The parties have withdrawn their request for oral argument. Doc. 52. For the reasons
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below, the Court will deny the motion in part and grant it in part.
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I.
Standard of Review
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Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient
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defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
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12(f). A court should strike an “insufficient defense” only if (1) it appears to a certainty
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that the claimant will succeed regardless of what facts could be proved in support of the
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defense; (2) the affirmative defense sought to be struck does not present disputed and
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substantial questions of law that could be resolved in such a way as to support the
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defense; and (3) the claimant shows it will be prejudiced by inclusion of the affirmative
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defense. See Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 80 (N.D.N.Y.
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2000). “Motions to strike are generally regarded with disfavor, but are proper when a
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defense is insufficient as a matter of law.” Torres v. Goddard, 2008 WL 1817994 (D.
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Ariz. April 22, 2008).
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II.
Discussion
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Cross-Claimant argues that it makes no stand-alone negligence claim and that
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Cross-Defendants’ (1) intervening cause, (2) supervening cause, and (3) contributory
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negligence defenses are inapplicable to its contract and intentional tort claims. Cross-
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Claimant further argues that there is no factual or legal basis for the (4) lack of
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consideration and (5) lack of privity defenses. However, Cross-Claimant has not shown
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that it will be prejudiced by the inclusion of any of these affirmative defenses. Lack of
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consideration and lack of privity are normal contractual defenses. See, e.g., PAE Gov.
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Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 858 (9th Cir. 2007). Accordingly, the Court
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denies the motion to strike affirmative defenses 1-5.
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With respect to affirmative defense 6, Cross-Defendants concede in their response
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that respondeat superior is a vicarious liability theory, not an affirmative defense.
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Doc. 50. The Court finds that it is proper to strike the respondeat superior defense
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because it is insufficient as a matter of law.
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IT IS ORDERED:
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1.
Motion to strike is denied with respect to the affirmative defenses of (1)
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intervening cause, (2) supervening cause, (3) contributory negligence, (4) lack of
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consideration, and (5) lack of privity.
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2.
Motion to strike is granted with respect to the affirmative defense of (6)
respondeat superior.
Dated this 4th day of October, 2011.
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