McCune v. Munirs Company et al

Filing 21

ORDER signed by Judge Garland E. Burrell, Jr., on 9/27/13 ORDERING that plaintiff's Motions to Strike IHOP and KFP's affirmative defenses are granted in part and denied in part. Each defendant has 14 days from the date this order is filed to file an amended answer addressing any stricken affirmative defense.(Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL McCUNE,

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Plaintiff,

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No. 2:12-cv-02733-GEB-EFB

v.

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTIONS TO STRIKE AFFIRMATIVE
DEFENSES

THE MUNIRS COMPANY dba
IHOP #1716; JOE A. and ESTHER
L. KOOPMAN FAMILY
PARTNERSHIP, a CALIFORNIA
LIMITED PARTNERSHIP,

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Defendants.

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Plaintiff moves under Federal Rule of Civil Procedure

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(“Rule”)

12(f)

for

an

order

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defenses of Defendant Munirs Company dba IHOP #1716 (“IHOP”) and

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twenty-four affirmative defenses of Defendant Joe A. and Esther

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L. Koopman Family Partnership (“KFP”).1 Each motion is opposed.
I.

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striking

twenty-six

affirmative

LEGAL STANDARD

Rule 12(f) permits a court to “strike from a pleading

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an

insufficient

defense

or

any

redundant,

immaterial,

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impertinent, or scandalous matter.” “[T]he function of a 12(f)

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motion to strike is to avoid the expenditure of time and money

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that must arise from litigating spurious issues by dispensing

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Plaintiff originally moved to strike each of KFP’s twenty-five
affirmative defenses. However, Plaintiff withdrew his motion to strike KPP’s
twenty-fourth affirmative defense in his reply brief. (Pl.’s Reply in Supp.
Mot. to Strike KFP’s Affirm. Defenses (“KFP Reply”) 9:21-22, ECF No. 17.)

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with those issues prior to trial . . . .” Sidney-Vinstein v. A.H.

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Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

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An affirmative defense may constitute “an insufficient

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defense” under Rule 12(f) either as a matter of law or as a

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matter of pleading. Kohler v. Islands Rests., LP, 280 F.R.D. 560,

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564 (S.D. Cal. 2012). An affirmative defense is insufficient as a

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matter of law if it clearly fails “under any set of facts the

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defendant might allege.” McArdle v. AT&T Mobility LLC, 657 F.

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Supp. 2d 1140, 1150 (N.D. Cal. 2009), rev’d on other grounds, 474

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F. App’x 515 (9th Cir. 2012); accord Dodson v. Strategic Rests.

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Acquisition Co. II, LLC, 289 F.R.D. 595, 603 (E.D. Cal. 2013).

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Whereas, “[t]he key to determining the sufficiency of pleading an

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affirmative defense is whether it gives plaintiff fair notice of

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the defense.” Wyshak v. City Nat’l Bank, 607 F. 824, 827 (9th

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Cir. 1979).

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“Fair notice general requires that the defendant state

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the nature and grounds for the affirmative defense.” Kohler v.

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Staples The Office Superstore, LLC, --- F.R.D. ----, 2013 WL

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544058, at *2 (S.D. Cal. 2013). Fair notice “does not . . .

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require a detailed statement of facts[,]” id., however, “‘[b]are

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bones

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Nationstar

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4736838, at *4 (E.D. Cal. Sept. 3, 2013) (quoting Heller Fin.,

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Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1295 (7th Cir.

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1989)).

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conclusion

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notice.” Id.; see also Qarbon.com Inc. v. Ehelp Corp., 315 F.

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Supp.

conclusory
Mortg.,

“An

2d

allegations’”
LLC,

affirmative
or

1046,

theory

1049

.

No.

CV

are
F

insufficient.
13-0307

LJO

defense

which

.

insufficient

(N.D.

.

is

Cal.
2

2004)

‘simply

(Mere

Burton

GSA,

states
to

v.

2013

a

provide

“reference

WL

legal
fair

to

a

1

doctrine, like reference to statutory provision, is insufficient

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notice”).

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II.

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A.

DISCUSSION

IHOP’s Affirmative Defenses

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Plaintiff moves to strike each of IHOP’s twenty-six

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affirmative

defenses

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alleged sufficient facts to put [Plaintiff] on notice of the

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nature of its defenses.” (Pl.’s Mot. to Strike IHOP’s Affirm.

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Defenses

(“IHOP
that

“under

Mot.”)

Wyshak[,]”

2:3-11,

No.

argues

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insufficient

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“IHOP

has

Plaintiff

any

set

of

defenses

facts

and

“are

not

further

stricken with prejudice[.]” (Id. at 3:5-7.)

under

affirmative

9.)

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certain

ECF

arguing

should

legally

therefore

be

IHOP “agrees to withdraw [its] second, third, fifth,

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seventh,

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twentieth,

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defenses.”

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“requests leave to amend its twenty-fourth affirmative defense.”

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(Id. at 10:22.) That request is granted.

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eighth,

ninth,

twelfth,

twenty-second[,]
(IHOP’s

Opp’n

and

1:10–12,

fifteenth,

seventeenth,

twenty-sixth
ECF

No.

14.)

affirmative
Further,

IHOP

In light of IHOP’s withdrawal of multiple affirmative

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defenses

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affirmative

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challenging

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Therefore, only IHOP’s first, fourth, sixth, tenth, eleventh,

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thirteenth,

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twenty-first, twenty-third, and twenty-fifth affirmative defenses

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are

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defenses are factually and/or legally sufficient.” (Id. at 1:12-

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13.)

at

and

the

leave

defense,
those

granted
the

issue.

portion

affirmative

fourteenth,

Defendant

to

amend
of

defenses

sixteenth,

“contends

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IHOP’s

Plaintiff’s
is

denied

eighteenth,

that

twenty-fourth

[these]

as

motion
moot.

nineteenth,

affirmative

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IHOP’s

fourth,

sixth,

tenth,

eleventh,

thirteenth,

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fourteenth, eighteenth twenty-first, and twenty-third affirmative

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defenses “merely [allege] legal conclusions or theories lacking

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reference or facts to explain their application to [Plaintiff’s]

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claims.” Burton, 2013 WL 473638, at *4. For example, IHOP’s sixth

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affirmative defense alleges “Plaintiff’s claims . . . are barred

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because Plaintiff failed . . . to properly mitigate his damages.”

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(IHOP’s Answer ¶ 57, ECF No. 7.) However, IHOP’s Answer “gives no

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notice to [Plaintiff] of the basis of his alleged failure to

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mitigate.”

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twenty-third affirmative defense alleges “Plaintiff’s Complaint,

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and each purported claim for relief alleged therein, is barred

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because

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(IHOP’s Answer ¶ 74), but IHOP alleges no grounds to support this

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affirmative

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eleventh,

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twenty-third affirmative defenses are stricken for failing to

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provide Plaintiff fair notice of the “nature and grounds” of the

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affirmative defenses alleged. Kohler, 2013 WL 544058, at *2.

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Kohler,

Plaintiff

2013

comes

defense.

thirteenth,

Further,

WL

to

544058,

the

Therefore,

Court

first,

*4.

with

IHOP’s

fourteenth,

IHOP’s

at

Similarly,

unclean

fourth,

eighteenth

IHOP’s

hands[,]”

sixth,

tenth,

twenty-first,

nineteenth,

and

and

twenty-fifth

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affirmative defenses are stricken since they do not constitute

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affirmative

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defense that “[t]he Complaint as a whole, and each purported

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claim for relief alleged therein, fails to state facts sufficient

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to constitute a claim for relief against [IHOP].” (IHOP’s Answer

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¶

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affirmative

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[Plaintiff’s] prima facie case.” J & J Sports Prods., Inc. v.

52.)

The

defenses.

IHOP

“[f]ailure
defense

to

but,

alleges

state

in

a

rather,

4

its

claim

first

is

asserts

not
a

affirmative

a

proper

defect

in

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Mendoza–Govan, No. C 10-05123 WHA, 2011 WL 1544886, at *5 (N.D.

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Cal.

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standing)

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property) affirmative defenses “address elements of [P]laintiff’s

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prima facie case,” and are therefore “properly addressed through

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denial or an appropriate motion[,]” not as affirmative defenses.

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Dodson v. Munirs Co., No. CIV S-13-0399 LKK/DAD, 2013 WL 3146818,

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at *8 (E.D. Cal. June 18, 2013) (citing Zivkovic v. S. Cal.

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Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)); accord Vogel v.

Apr.

25,
and

2011).

Similarly,

twenty-fifth

Oaks

Del.

(lack

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Huntington

Partners,

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the
of

nineteenth

control

LLC,

---

(Plaintiff’s

over

F.R.D.

the

---,

subject

2013

WL

3337803, at *4 (C.D. Cal. 2013).

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The only affirmative defense which is adequately pled

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is IHOP’s sixteenth affirmative defense (statute of limitations).

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Since

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date(s) on which the alleged violations occurred, [IHOP] cannot

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be expected to articulate the statutes of limitations that may

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bar

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Therefore,

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affirmative defense is denied.

“[P]laintiff

[P]laintiff’s

[does

not]

claims.”

Plaintiff’s

allege

Dodson,

motion

to

in

2013

his

WL

strike

[C]omplaint

3146818,
IHOP’s

at

the

*8.

sixteenth

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For the stated reasons, IHOP’s first, fourth, sixth,

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tenth, eleventh, thirteenth, fourteenth, eighteenth, nineteenth,

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twenty-first, twenty-third, and twenty-fifth affirmative defenses

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are stricken. IHOP is given fourteen (14) days from the date this

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order is filed to file an amended answer addressing any stricken

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affirmative defense. See Wyshak, 607 F.2d at 827 (“In the absence

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of prejudice to the opposing party, leave to amend [any stricken

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affirmative defense] should be freely given.)2

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In each of his motions, Plaintiff requests that should the court grant

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B.

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KFP’s Affirmative Defenses
Plaintiff

moves
“under

strike

twenty-four

Wyshak[,]”

arguing

of

“KFP

KFP’s

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affirmative

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alleged sufficient facts to put [Plaintiff] on notice of the

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nature of its defenses.” (Pl.’s Mot. to Strike KFP’s Affirm.

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Defenses (“KFP Mot.”) 2:3-11, ECF No. 11-1; KFP Reply 9:21-22.)

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Plaintiff further argues that certain affirmative defenses “are

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legally insufficient under any set of facts and should therefore

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be stricken with prejudice[.]” (KFP Mot. 3:3-5.)

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defenses

to

has

not

KFP “agrees [its twenty-third] affirmative defense may

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be

stricken

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Accordingly, the portion of Plaintiff’s motion challenging this

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affirmative defense is denied as moot. However, KFP contends that

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its remaining affirmative defenses are sufficiently pled. (Id. at

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5:7.)

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.

KFP’s
eleventh,

.

.

third,

.”

(KFP’s

Opp’n

fourth,

thirteenth,

sixth,

9:12-13,

seventh,

No.

eighth,

fifteenth,

13.)

ninth,

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tenth,

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nineteenth,

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affirmative defenses fail to provide Plaintiff with fair notice

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of the nature and grounds of the affirmative defenses alleged.

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Therefore, they are stricken.

twentieth,

fourteenth,

ECF

twenty-first,

and

sixteenth,

twenty-second

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Further, KFP’s second (fault of others), seventeenth

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(contributory negligence), and eighteenth (assumption of risk)

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affirmative defenses are stricken as “impertinent” since they are

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affirmative

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defenses

to

tort

claims,

and

Plaintiff

has

not

Defendants leave to amend the insufficiently alleged affirmative defenses,
that “this court . . . require [Defendants] to re-plead under the heightened
Twombly standard.” (IHOP Mot. 2:26-3:2; KFP Mot. 2:24-27.) However, this
request has not been shown ripe for decision. Therefore, no opinion is
expressed on this issue.

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alleged a tort claim. Fed. R. Civ. P. 12(f). See Fantasy, Inc. v.

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Fogerty, 984 F.2d 1524, (9th Cir. 1993) (“‘Impertinent’ matter

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consists

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necessary, to the issues in question.”), rev’d on other grounds,

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510 U.S. 517, 534-35 (1994); see also Vogel, 2013 WL 3337803, at

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*4

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third-party responsibility affirmative defenses as “impertinent”

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in an ADA accessibility action).

of

(striking

statements

that

comparative

do

not

negligence,

pertain,

and

assumption

of

are

not

risk,

and

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Also, KFP’s first (failure to state a claim), fifth

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(lack of control over the subject property), and twenty-fifth

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(further affirmative defenses) affirmative defenses are stricken

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since they do not constitute affirmative defenses. See Mendoza-

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Govan, 2011 WL 1544886, at *5; EEOC v. Timeless Inves., Inc., 734

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F.

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affirmative defenses is not an affirmative defense.”).

Supp.

2d

1035,

1055

(E.D.

Cal.

2010)

(“A

reservation

of

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However, KFP’s twelfth affirmative defense (statute of

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limitations) is pled with sufficient particularity. KFP’s twelfth

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affirmative

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sixteenth (statute of limitations) affirmative defense and is

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adequately pled for the same reasons stated above in denying

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Plaintiff’s

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defense. (Compare FKP’s Answer 7:1-5, ECF No. 8, with IHOP’s

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Answer

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twelfth affirmative defense is denied.

¶

defense

motion

67.)

contains

to

similar

strike

Therefore,

IHOP’s

Plaintiff’s

allegations

sixteenth

motion

to

to

IHOP’s

affirmative

strike

KFP’s

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KFP is given fourteen (14) days from the date this

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order is filed to file an amended answer addressing any stricken

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affirmative defense.

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C. CONCLUSION

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For the stated reasons, Plaintiff’s Motions to Strike

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IHOP

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denied in part. Each Defendant has fourteen (14) days from the

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date this order is filed to file an amended answer addressing any

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stricken affirmative defense.

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and

KFP’s

Dated:

affirmative

defenses

September 27, 2013

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are

granted

in

part

and