Terry et al v. Ola, City of
ORDER granting in part and denying in part pltfs' 8 Motion to Strike the affirmative defenses. Signed by Chief Judge J. Leon Holmes on 11/1/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT TERRY and
NO. 4:11CV00645 JLH
CITY OF OLA
OPINION AND ORDER
Robert Terry and John Stafford bring this action against the City of Ola, Arkansas, alleging
that the City has willfully violated the Fair Labor Standards Act by classifying them as exempt and
failing to pay overtime. The City of Ola has responded by denying many of the allegations and
setting out several affirmative defenses. The plaintiffs have moved to strike the affirmative defenses
pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. In response, the City has withdrawn
one affirmative defense, namely, that the plaintiffs’ claims are barred because they have failed to
exhaust their administrative remedies.
Rule 12(f) provides that a court may strike from a pleading “an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” The Eighth Circuit has noted that the
rule is stated in the permissive, so the district court enjoys “liberal discretion” in deciding whether
to grant a motion to strike. Stanbury Law Firm v. Internal Revenue Serv., 221 F.3d 1059, 1063 (8th
Cir. 2000). “Despite this broad discretion however, striking a party’s pleadings is an extreme
measure, and, as a result, we have previously held that ‘[m]otions to strike under Fed. R. Civ. P.
12(f) are viewed with disfavor and are infrequently granted.’” Id., quoting Lunsford v. United
States, 570 F.2d 221, 229 (8th Cir. 1977). As a leading treatise explains:
Motions to strike a defense as insufficient are not favored by the federal courts
because of their somewhat dilatory and often harassing character. Thus, even when
technically appropriate and well founded, Rule 12(f) motions often are not granted
in the absence of a showing of prejudice to the moving party. Nonetheless, these
motions are a useful and appropriate tool when the parties disagree only on the legal
implications to be drawn from uncontroverted facts. . . . In sum, a motion to strike
will not be granted if the insufficiency of the defense is not clearly apparent, or if it
raises factual issues that should be determined on a hearing on the merits.
5C Charles Allen Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURES § 1381 (3d ed.
Here, many of the allegations listed under the heading “Defenses” are appropriate in the
context of this case even if some of them are not actually affirmative defenses but simply reiterations
of the fact that the City of Ola denies that it is liable. In this category are the allegations that the
complaint fails to state a claim upon which relief can be granted, that the defendant did not violate
any provision of the Fair Labor Standards Act, that the plaintiffs are not entitled to compensation
as requested in their complaint, that the defendant did not willfully deprive the plaintiffs of any
wages that they are due and acted in good faith, that all or part of the work for which the plaintiffs
seek compensation does not constitute compensable working time, and that the plaintiffs’ claims are
barred by the portal to portal act, as well as the de minimis doctrine. All of these “defenses” are
appropriate in the context of this case even if some of them are not affirmative defenses but simply
alternative ways of denying the plaintiffs’ claims.
The other “defenses” have no apparent application in this context: that the alleged damages
did not occur as a result of any policy, custom, or practice of the City of Ola, that the plaintiffs failed
to mitigate their damages, and the final allegation listed as a defense, which is: “Defendant asserts
any and all applicable affirmative defenses in Fed. R. Civ. P. 8(c), including but not limited to: (a)
accord and satisfaction; (b) payment; (c) fraud; (c) [sic] illegality; (d) payment; and (e) release.”
Because those defenses have no apparent application in this context, the Court grants the motion to
strike as to those defenses, without prejudice to the right of the City of Ola to move to amend the
answer to state those defenses upon a showing that those defenses have some application to the
For the reasons stated, the motion to strike is granted in part and denied in part. Document
IT IS SO ORDERED this 1st day of November, 2011.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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