Oskowis v. Sedona Oak-Creek Unified School District #9

Filing 33

ORDER denying Plaintiff's First Motion to Strike Affirmative Defenses (Doc. 12 ) as moot. FURTHER ORDERED granting in part and denying in part Plaintiff's Second Motion to Strike Affirmative Defenses (Doc. 23 ). With regard to Defendant&# 039;s Affirmative Defenses contained in its [Proposed] Second Amended Answer (Doc. 21, Ex. A), the Court strikes Nos. 1 and 17 with no leave to amend. Plaintiff's Motion is denied as to the balance of Defendant's Affirmative Defenses. IT IS FURTHER ORDERED granting Defendant's Motion to Amend/Correct Amended Answer to the Complaint (Doc. 21 ). Defendant shall file its Second Amended Answer on the docket after omitting the stricken affirmative defenses in conformity with this Order by September 16, 2016. Signed by Judge John J Tuchi on 9/8/2016.(KMG)

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Matthew Oskowis, No. CV-16-08063-PCT-JJT Plaintiff, 10 11 v. 12 ORDER Sedona Oak-Creek Unified School District #9, 13 Defendant. 14 15 At issue is Plaintiff’s First and Second Motions to Strike Affirmative Defenses 16 (Doc. 12, First MTS; Doc. 23, Second MTS),1 to which Defendant filed Responses 17 (Doc. 18, Resp. to First MTS; Doc. 25, Resp. to Second MTS); and Defendant’s Motion 18 to Amend/Correct Amended Answer to the Complaint (Doc. 21, MTA), to which 19 Plaintiff filed a Response (Doc. 22, Resp. to MTA). Plaintiff asks the Court to strike four 20 affirmative defenses2 raised by Defendant in the First Amended Answer (Doc. 20, FAA) 21 and Proposed Second Amended Answer (Doc. 21, Ex. A [Proposed] SAA) under Federal 22 Rule of Civil Procedure 12(f). (Second MTS at 4-6.) Defendant has responded and 23 requested leave to file a Second Amended Answer, which proposes to add one more 24 affirmative defense. 25 1 26 27 28 While both Plaintiff’s motions are entitled “First” Motions to Strike, the Court refers to them chronologically here for clarity. 2 Although Plaintiff’s proposed order lists only four paragraphs (and five affirmative defenses) he wishes the Court to strike, the body of the motion attacks nine paragraphs as individual affirmative defenses. The Court has construed Plaintiff’s motion as seeking to strike paragraphs 1, 3, 7, 8, 9, 10, 11, 12, and 16 of the Amended Answer. 1 I. DEFENDANT’S MOTION FOR LEAVE TO AMEND 2 Federal Rule of Civil Procedure 15 provides that leave to amend should be freely 3 granted “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “The power to grant leave to 4 amend, however, is entrusted to the discretion of the district court, which ‘determines the 5 propriety of a motion to amend by ascertaining the presence of any of four factors: bad 6 faith, undue delay, prejudice to the opposing party, and/or futility.’” Serra v. Lappin, 600 7 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilley Enters. v. Atl. Richfield Co., 8 588 F.3d 659, 669 n.8 (9th Cir. 2009)). 9 In the Proposed SAA, Defendant makes no additions or amendments to the vast 10 majority of its FAA and adds only one new affirmative defense. Nonetheless, Plaintiff 11 asks the Court to deny Defendant’s proposal due to futility and lack of diligence. (Resp. 12 to MTA at 4-6.) Aside from the fact that Plaintiff points to no prejudice in allowing 13 Defendant to amend its FAA, the prejudice of having to prosecute his claims against 14 affirmative defenses is not the type of prejudice contemplated under Rule 15. Moreover, 15 the Court sees no other prejudice here. The Court has just entered a case management 16 order (Doc. 29) and discovery has just begun. In addition, there is no evidence to indicate 17 that Defendant engaged in bad faith or undue delay in amending the FAA. Any lack of 18 due diligence as alleged by Plaintiff is of little consequence at this stage in the litigation 19 and does not warrant denial of Defendant’s motion. 20 The only remaining factor that could weigh against allowing Defendant to amend 21 the SAA is futility. In his Response to Defendant’s Motion to Amend, Plaintiff argues he 22 is not required to exhaust any further administrative remedies, that claims pertaining to 23 the agreement at issue may be brought directly in this Court, and that even if he were 24 required to exhaust any administrative remedies, there are no remedies for him to 25 exhaust. (Resp. to MTA at 2-5.) To support this, Plaintiff distinguishes precedent, points 26 to the agreement’s language, and provides an extemporaneous email purportedly from the 27 Deputy Director of Legal Services for the Arizona Department of Education instructing 28 him to bring his action in state court. (Resp. to MTA at 2-5, Ex. A.) -2- 1 A district court may deny leave to amend where the “amendment would be futile 2 or where the amended complaint would be subject to dismissal.” Saul v. United States, 3 928 F.2d 829, 843 (9th Cir. 1991). None of the arguments Plaintiff raises are sufficient 4 for the Court to disallow Defendant’s singular proposed amendment for futility. 5 Moreover, the majority of Plaintiff’s arguments are not appropriate at this time. Indeed, 6 in arguing that Defendant’s additional affirmative defense would be futile, Plaintiff 7 expressly asks the Court to consider a document outside both the Complaint and the 8 proposed SAA that, Plaintiff argues, call into question the feasibility and necessity of 9 Defendant’s proposed affirmative defense. (Resp. to MTA at 2-5, Ex. A.) Just as when a 10 court considers a motion to dismiss—where it limits its review to the contents of the 11 complaint and considers only material that is properly presented to the court as part of the 12 complaint—the Court similarly limits its evaluation here. See Lee v. City of L.A., 250 13 F.3d 668, 688-89 (9th Cir. 2001). Thus, the Court will not oblige Plaintiff and consider 14 the outside material cited in his Response. Defendant’s requested amendment is not futile 15 under Rule 15 and the Court will grant Defendant’s Motion to Amend. 16 II. PLAINTIFF’S MOTIONS TO STRIKE AFFIRMATIVE DEFENSES 17 Federal Rule of Civil Procedure 8(c) provides that a defendant must “state any 18 avoidance or affirmative defense” in answering a complaint. The Ninth Circuit Court of 19 Appeals has construed this requirement to mean that a defendant must give “fair notice” 20 of affirmative defenses to the plaintiff. Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 21 1023 (9th Cir. 2010) (citing Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 22 1979)). The Supreme Court has long held that fair notice requires only a plain statement 23 of the nature and grounds of a claim or defense. See Kohler v. Islands Rests., LP, 280 24 F.R.D. 560, 564 (S.D. Cal. 2012) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 An affirmative defense may be insufficient as a matter of pleading or of law. Id.; 26 Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262 (9th Cir. 1987). A party 27 may ask the Court to “strike from a pleading an insufficient defense or any redundant, 28 immaterial, impertinent, or scandalous matter” under Rule 12(f). “The function of a 12(f) -3- 1 motion to strike is to avoid the expenditure of time and money that must arise from 2 litigating spurious issues by dispensing with those issues prior to trial.” Fantasy, Inc. v. 3 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation omitted), rev’d on other 4 grounds, 510 U.S. 517 (1994). “‘Immaterial’ matter is that which has no essential or 5 important relationship to the claim for relief or the defenses being pleaded.” Id. (quoting 6 5 Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1382, at 706-07, 7 711 (2d ed. 1990)). Courts generally view motions to strike disfavorably “because they 8 are often used to delay and because of the limited importance of the pleadings in federal 9 practice.” Brewer v. Indymac Bank, 609 F. Supp. 2d 1104, 1113 (E.D. Cal. 2009). “A 10 motion to strike should not be granted unless it is absolutely clear that the matter to be 11 stricken could have no possible bearing on the litigation.” Id. 12 A. 13 The bulk of Plaintiff’s Motions to Strike contend that Defendant’s affirmative 14 defenses are insufficiently pled. (E.g., Second MTS at 4-6.) In particular, Plaintiff argues 15 that Defendant’s Affirmative Defenses Nos. 3, 7, 8, 9, 10, 11, and 12 do not provide fair 16 notice for various reasons: they fail to provide relevant statutory or precedential citation, 17 are conclusory, or lack specificity as to their direction. (E.g., Second MTS at 4-6.) As 18 noted above, Defendant need only provide a plain statement of the nature and grounds of 19 each affirmative defense; they need not plead “enough facts to state a claim to relief that 20 is plausible on its face,” as required by Bell Atlantic Corporation v. Twombly, 550 U.S. 21 544, 555 (2007), and its progeny. See G & G Closed Circuit Events, LLC v. Mitropoulos, 22 No. CV-12-0163-PHX-DGC, 2012 WL 3028368, at *1 (D. Ariz. July 24, 2012). With 23 this standard in mind, the Court finds that Defendant gave Plaintiff fair notice of its 24 affirmative defenses. Fair Notice of Affirmative Defenses 25 B. 26 Plaintiff next asserts that Defendant’s allegation that the Plaintiff failed to state a 27 claim for relief (Affirmative Defense No. 1) is not a proper affirmative defense. (E.g., 28 First MTS at 4-5.) While Defendant justifies raising this as an affirmative defense by Failure to State a Claim -4- 1 citation to the Federal Rules of Civil Procedure (Resp. to First MTS at 6), the Court 2 agrees with the conclusion of other district courts in the Ninth Circuit that failure to state 3 a claim is properly raised as a challenge to a plaintiff’s prima facie claim, not as an 4 affirmative defense to it. See, e.g., Barnes v. AT&T Pension Benefits Plan— 5 Nonbargained Program, 718 F. Supp. 2d 1167, 1176 (N.D. Cal. 2010). Because 6 Defendants cannot cure this defect, the Court will strike this affirmative defense with no 7 leave to amend. 8 C. 9 Finally, Plaintiff argues that Defendant’s Affirmative Defense No. 17, asserting 10 “additional affirmative defenses set forth in Rule 8(c) and Rule 12, Fed. R. Civ. P. may 11 become applicable as discovery progresses” is improper. (Second MTS at 5.) The Court 12 agrees. The purported affirmative defense does not independently raise any new issues of 13 fact or identify any specific affirmative defense. An attempt to reserve affirmative 14 defenses for a future date is not a proper affirmative defense. Solis v. Zenith Capital LLC, 15 No. C08-4854 PJH, 2009 WL 1324051, at *7 (N.D. Cal. May 8, 2009). Any new 16 affirmative defense that Defendant intends to supplement its Answer with “must comply 17 with Rule 15 of the Federal Rules of Civil Procedure.” Id. The Court will strike 18 Defendant’s reservation of the right to allege additional affirmative defenses. Because 19 Defendant’s reservation is not a proper affirmative defense, the Court does not grant 20 leave to amend. Should the Defendant wish to plead additional affirmative defenses in the 21 future, the Federal Rules of Civil Procedure govern Defendant’s ability to do so. 22 23 Reservation of Rights IT IS THEREFORE ORDERED denying Plaintiff’s First Motion to Strike Affirmative Defenses (Doc. 12) as moot. 24 IT IS FURTHER ORDERED granting in part and denying in part Plaintiff’s 25 Second Motion to Strike Affirmative Defenses (Doc. 23). With regard to Defendant’s 26 Affirmative Defenses contained in its [Proposed] Second Amended Answer (Doc. 21, 27 Ex. A), the Court strikes Nos. 1 and 17 with no leave to amend. Plaintiff’s Motion is 28 denied as to the balance of Defendant’s Affirmative Defenses. -5- 1 IT IS FURTHER ORDERED granting Defendant’s Motion to Amend/Correct 2 Amended Answer to the Complaint (Doc. 21). Defendant shall file its Second Amended 3 Answer on the docket after omitting the stricken affirmative defenses in conformity with 4 this Order by September 16, 2016. 5 Dated this 8th day of September, 2016. 6 7 8 Honorable John J. Tuchi United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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