Kelley v. Nitrogen Solutions LLC et al
ORDER denying 7 Plaintiff's Motion to Strike and granting 11 Defendant's Motion for Leave to Amend. The proposed amended answer must be filed within seven days from the entry of this Order. Signed by Judge J. Leon Holmes on 1/23/2013. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NO. 3:12CV00246 JLH
NITROGEN SOLUTIONS, L.L.C.;
MICHAEL STICKLER; MATTHEW MCCAUGHEY;
JOHN MCCAUGHEY; JOAN KHILLING;
and MICHAEL JACQUES
Wesley Kelley filed a motion to strike certain affirmative defenses, arguing in part that they
were inapplicable to this action and in part that the serial listing of affirmative defenses fails to meet
the pleading standards articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009). The defendants have filed a motion for leave to file an amended
answer, to which there has been no objection, but they reiterate in the proposed amended answer the
affirmative defenses that are the subject of the motion to strike. Therefore, while the motion for leave
to amend is granted without objection, the proposed amendment does not moot the motion to strike.
Defendants also respond on the merits to the motion to strike, arguing that the affirmative defenses
at issue, while perhaps not applicable to the claims under the Fair Labor Standards Act or the
Oklahoma Minimum Wage Act, are applicable to the common law breach of contract claim asserted
in the complaint. The defendants also argue that the pleading standards of Twombly and Iqbal do not
apply to affirmative defenses. See Ash Grove Cement Co. v. MMR Constructors, Inc., No.
4:10CV04069, 2011 WL 3811445 (W.D. Ark. Aug. 29, 2011). In reply, Kelley concedes that all of
the affirmative defenses are the subject of the motion to strike could be applicable to the breach of
contract claim and therefore requests the Court to issue an order limiting the affirmative defenses to
In view of the fact that the parties seem to agree that most, if not all, of the affirmative
defenses that were the subject of the motion to strike may be applicable to a breach of contract claim,
the motion to strike will be denied. Document #7. There does not appear to be a dispute as to
whether the affirmative defenses at issue apply to the FLSA and OMWA claims, so the Court need
not address that issue. The motion for leave to amend is granted. Document #11. The proposed
amended answer must be filed within seven days from the entry of this Order.
IT IS SO ORDERED this 23rd day of January, 2013.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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