Harris et al v. Chipotle Mexican Gill, Inc.

Filing 37

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 10/6/2014 ORDERING 30 Plaintiffs' Motion to Strike is GRANTED in PART and DENIED in PART; Defendant has 20 days from the date this Order is signed to file an amended answer if it can do so consistent with this Order. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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DANISHA HARRIS; ANTANISHA WILEY;
DEONTE MASK; JASON RYAN;
individually, and on behalf of
other members of the general
public similarly situated,

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MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION TO STRIKE
PORTIONS OF DEFENDANTS’
ANSWER TO PLAINTIFF’S FIRST
AMENDED CLASS ACTION
COMPLAINT

Plaintiffs,

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NO. CIV 2:13-2472 WBS EFB

v.
CHIPOTLE MEXICAN GRILL, INC., a
Delaware corporation; and DOES 1
through 10, inclusive,
Defendants.

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----oo0oo---Plaintiffs Danisha Harris, Antanisha Wiley, Deonte

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Mask, and Jason Ryan brought this action on behalf of themselves

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and others similarly situated against defendants Chipotle Mexican

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Grill, Inc.; Chipotle Mexican Grill Service Co., LLC; CMG Service

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Co., LLC; and Chipotle Services, LLC, arising out of defendants’

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allegedly discriminatory employment practices.
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Presently before

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the court is plaintiffs’ motion to strike portions of defendants’

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Answer to plaintiff’s First Amended Complaint (“FAC”).

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I. Factual and Procedural Background

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Plaintiffs filed their Complaint on November 26, 2013,

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asserting defendant Chipotle Mexican Grill, Inc. violated Title

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VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.;

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the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 et seq.; and the

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California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t

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Code §§ 12940 et seq.

(Compl. (Docket No. 1).)

Defendant filed

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its Answer, (Docket No. 6), and plaintiffs moved to strike

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eighteen of the affirmative defenses therein, (Docket No. 8). In

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lieu of filing an opposition to the motion to strike, defendant

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filed a First Amended Answer, but the court ruled it was untimely

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under Rule 15(a)(1)(A), (Jan. 24, 2014 Order at 2:7-9 (Docket No.

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11)).

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file an amended answer, the court granted such leave.

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court ordered that “after defendant files its amended answer,

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plaintiffs may file a subsequent motion to strike if doing so is

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truly necessary and the particularity plaintiffs seek cannot be

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obtained through interrogatories.”

Construing the untimely filing as a request for leave to
(Id.)

The

(Id. at 2:19-22.)

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Plaintiffs subsequently moved to amend their Complaint

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to join the additional defendants and, having been granted leave

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to do so for good cause, (Docket No. 23), filed their FAC.

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Plaintiffs now move to strike twenty-one affirmative defenses in

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defendants’ Answer to the FAC as well as defendants’ reservation

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of their right to amend the Answer and request for costs and

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attorneys’ fees.

(Mot. to Strike (Docket No. 30).)

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II.

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Analysis
Rule 12(f) authorizes a court to “strike from a

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pleading an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.”

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function of a 12(f) motion to strike is to avoid the expenditure

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of time and money that must arise from litigating spurious issues

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by dispensing with those issues prior to trial . . . .”

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Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation

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marks, citation, and first alteration omitted), rev’d on other

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Fed. R. Civ. P. 12(f).

“The

Fantasy,

grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

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Affirmative defenses can be challenged as a matter of

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pleading or as a matter of law.

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

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(Karlton, J.).

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if it “lacks merit under any set of facts the defendant might

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allege.”

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omitted).

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affirmative defense is whether it gives plaintiff fair notice of

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the defense.”

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Cal. 2012) (quoting Wyshak v. City Nat’l. Bank, 607 F.2d 824, 827

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(9th Cir. 1979)).1

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See Dodson v. Strategic Rests.

An affirmative defense fails as a matter of law

Id. (internal quotation marks omitted and citation
“The key to determining the sufficiency of pleading an

Kohler v. Islands Rest., 280 F.R.D. 560, 564 (S.D.

The court acknowledges the disagreement among district
courts in the Ninth Circuit--including between different judges
within this district--over whether affirmative defenses must meet
the plausibility pleading standard of Bell Atlantic Corporation
v. Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009). Compare Kohler v. Islands Rests., 280 F.R.D. 560,
566 (S.D. Cal. 2012) (declining to extend the Twombly/Iqbal
pleading standard to affirmative defenses), with Dion v. Fulton
Friedman & Gullace LLP, Civ. No. 3:11-2727, 2012 WL 160221, at *2
(N.D. Cal. Jan. 17, 2012) (applying the Twombly/Iqbal standard).
The court need not reach this question here, as any affirmative
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Because motions to strike are “often used as delaying

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tactics,” they are “generally disfavored” and are rarely granted

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in the absence of prejudice to the moving party.

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Citibank, FSB, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001); see

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also N.Y.C. Emps.’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128

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(N.D. Cal. 2009) (“Where the moving party cannot adequately

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demonstrate . . . prejudice, courts frequently deny motions to

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strike even though the offending matter was literally within one

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or more of the categories set forth in Rule 12(f).” (citation and

Rosales v.

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internal quotation marks omitted)).

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“where superfluous pleadings may confuse the jury, or where a

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party may be required to engage in burdensome discovery around

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frivolous matters.”

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2:10-3229 JAM CKD, 2011 WL 5040709, at *1 (E.D. Cal. Oct. 24,

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2011) (citations omitted).

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Courts may find prejudice

J & J Sports Prods., Inc. v. Luhn, Civ. No.

A. Affirmative Defenses One (“Lack of Standing”), Two

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(“Failure to State a Claim”), Five (“Lack of Authorization and/or

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Ratification”), Ten (“Avoidable Consequences”), Eleven (“Failure

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to Mitigate Damages”), Twenty-Seven (“Adequacy of Remedy at

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Law”), and Twenty-Eight (“Unconstitutionality of Punitive

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Damages”)

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Plaintiffs argue the affirmative defenses in this group

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are not actually affirmative defenses and should be stricken on

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that basis.

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No. 30).)

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met its burden of proof is not an affirmative defense.”

(Mem. in Support of Mot. to Strike at 9-12 (Docket

“A defense which demonstrates that plaintiff has not
Zivkovic

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defenses that are insufficiently pled would fail to satisfy
either standard.
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v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002); see

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also Dodson v. Munirs Co., Civ. No. S-13-0399 LKK DAD, 2013 WL

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3146818, at *8 (E.D. Cal. June 18, 2013).

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“failure to state a claim” and at least some other defenses in

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this category are not truly affirmative in nature.

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2013 WL 3146818, at *8 (striking affirmative defense alleging

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failure to state a claim because it “address[es] elements of

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plaintiff’s prima facie case” and is “properly addressed through

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denial or an appropriate motion”).2

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The court agrees that

See Dodson,

Regardless of whether or not these defenses are

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properly characterized as “affirmative,” the court will deny

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plaintiffs’ motion to strike them because plaintiffs have failed

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to show they will suffer any prejudice if the defenses are left

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in the defendants’ Answer.

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The court cannot conceive how these defenses will “cost both the

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parties and the [c]ourt unnecessary time and resources.”

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in Support at 5:10-12.)

See Rosales, 133 F. Supp. At 1180.

(Mem.

In fact, it is more likely the parties

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However, the court notes that, at least with respect to
Title VII, “the burden of proving a failure to mitigate damages
in an employment discrimination suit is on defendant.” Cassella
v. Mineral Park, Civ. No. 08-1196 PHX MHM, 2010 WL 454992, at *5
(D. Ariz. Feb. 9, 2010) (citing Sias v. City Demonstration
Agency, 588 F.2d 692, 697 (9th Cir. 1978)).
Additionally, the court acknowledges that it has
previously granted motions to strike affirmative defenses on the
basis that a defendant has improperly plead the defense as
“affirmative.” See, e.g., Nat’l Grange of the Order of Patrons
of Husbandry v. Cal. State Grange, Civ. No. 2:14-676 WBS DAD,
2014 WL 3837434, at *2 (E.D. Cal. Jul. 30, 2014). However, as
motions to strike have seem to become the order of the day in
this district, and out of concern for judicial resources, the
court must be diligent in its assessment of whether affirmative
defenses actually prejudice plaintiffs.

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and the court have already needlessly expended more resources on

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this motion.3

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B. Affirmative Defenses Twenty (“No Certifiable

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Class”), Twenty-One (“No Common Issues”), Twenty-Two (“Inadequacy

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of Class Representative”), Twenty-Three (“Lack of Typicality”),

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Twenty-Four (“Inadequacy of Plaintiffs’ Counsel”), Twenty-Five

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(“Lack of Numerosity”), and Twenty-Six (“Lack of Superiority”)

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Plaintiffs argue defenses in this group “are mere
arguments pertaining to class suitability” and are improperly

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alleged as affirmative defenses.

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Plaintiffs also argue defendants allege no facts in support of

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these defenses.

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burden to show the class is certifiable under Rule 23, see

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Mantolete v. Bolger, 767 F.2d 1416, 1424 (“[T]he plaintiff bears

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the burden of advancing a prima facie showing that the class

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action requirements of [Rule 23] are satisfied or that discovery

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is likely to produce substantiation of the class allegations.”),

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defendants need not support these defenses with facts.

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Furthermore, while it is true these assertions are not

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technically “affirmative defenses,” the court cannot conceive of

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how the presence of these assertions in the Answer will prejudice

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(Id. at 13:8-9.)

(Mem. in Support at 13:4-8.)

Because it is plaintiffs’

In their Reply, plaintiffs state their discovery
requests have been “met with untimely responses, boilerplate
objections, and a stated refusal to engage in ‘informal
discovery.’” (Reply at 1:2-14 (Docket No. 35).) Furthermore,
they state “defendants’ strategy of delaying discovery and
withholding documents and information has the potential to work
extreme prejudice to plaintiffs’ ability to prepare a class
certification motion and ready this case for trial.” (Id.)
However, Federal Rule of Civil Procedure 37 is the proper vehicle
for seeking a remedy for defendants’ alleged non-compliance with
discovery requests.
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plaintiffs.

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See Rosales, 133 F. Supp. at 1180.

C. Affirmative Defenses Four (“Failure to Exhaust

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Internal Complaint Resolution Procedure”), Eight (“No Vicarious

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Liability”), and Twelve (“Prevention and/or Correction of Alleged

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Behavior”)

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Plaintiffs argue the defenses in this group should be

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stricken because they are immaterial to plaintiffs’ claims.

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(Mem. in Support of Mot. to Strike at 11:13-20.)

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agrees that defendants’ eighth affirmative defense applies to

The court

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allegations of harassment in “hostile work environment” cases,

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which are not at issue in this action.

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Boca Raton, 524 U.S. 775, 807 (1998) (noting in certain

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circumstances “[a]n employer is subject to vicarious liability to

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a victimized employee for an actionable hostile environment”);

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see also State Dep’t. of Health Servs. v. Superior Court, 31 Cal.

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4th 1026, 1040 (2003) (discussing the standard for supervisor

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liability under FEHA as it applies in harassment cases).

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same is true of defendants’ fourth defense, which alleges

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plaintiffs failed to exhaust the internal complaint resolution

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procedure.

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failure to take advantage of preventative or corrective

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procedures may be raised as an affirmative defense in a

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harassment case when no tangible employment action has been

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taken); State Dep’t. of Health, 31 Cal. 4th at 1048 (holding

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employee’s failure to report harassment may serve to reduce

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damages available in a sexual harassment case).

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foreseeable that the inclusion of these defenses could lead

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plaintiffs to burdensome yet futile discovery, see J & J Sports

See Faragher v. City of

The

See Faragher, 524 U.S. at 807 (holding a plaintiff’s

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Because it is

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Prods., 2011 WL 5040709, at *1, the court will grant plaintiffs’

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motion with respect to defenses four and eight.

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The court, however, is not inclined to strike the

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twelfth defense.

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Code makes it unlawful for an employer to fail to take “all

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reasonable steps necessary” to prevent discrimination and

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harassment from occurring.

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their FAC, plaintiffs do not allege defendants failed to take

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reasonable steps to prevent discrimination.

Section 12940(k) of the California Government

Cal. Gov’t. Code § 12940(k).

In

However, because

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they bring a claim under “Government Code § 12940 et seq,” it is

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at least conceivable that defendants’ use of “reasonable care”

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will be an issue.

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mischaracterized as “affirmative,” this alone is an insufficient

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basis for striking it.

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court will deny plaintiffs’ motion to strike the twelfth defense.

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D. Affirmative Defenses Seven (“Managerial Privilege”),

Although the twelfth defense is perhaps

See Rosales, 133 F. Supp. At 1180.

The

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Thirteen (“After Acquired Evidence”), and Fourteen (“Unclean

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Hands”)

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Defendants’ seventh and fourteenth defenses are

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barebones recitations of legal doctrines with no supporting facts

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and no apparent connection to the allegations in plaintiffs’ FAC.

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(See Ans. at 20:17-21, 23:10-14.)

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defense, “[a] reference to a doctrine, like a reference to

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statutory provisions, is insufficient notice.”

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v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004).

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such, defenses seven and fourteen conceivably pose a risk that

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plaintiffs will have to engage in futile discovery and will be

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stricken.

When asserting an affirmative

See Rosales, 133 F. Supp. at 1180.
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Quarbon.com Inc.
As

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E.

Affirmative Defense Nine (“Workers’ Compensation

as Exclusive Remedy”)
Defendants assert the causes of action in the FAC “are

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barred, in whole or in part, because the exclusive remedy for the

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damages asserted by plaintiffs is provided by the California

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Workers’ Compensation Act, California Labor Code §§ et seq.”

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(Ans. at 21:6-16.)

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clarify that “[they] are not asserting by this defense that all

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FEHA claims are necessarily precluded by workers’ compensation,

In their Opposition, defendants attempt to

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but, instead, that some of the claims and/or recoveries to which

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plaintiffs or the named class members may be entitled may be

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precluded to the extent that they overlap with parallel workers’

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compensation claims that they may be pursuing against

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defendants.”

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defense, purely hypothetical and supported by no factual basis,

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risks sending plaintiffs on a fishing expedition, see J & J

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Sports Prods., 2011 WL 5040709, at *1, and the court will grant

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plaintiffs’ motion to strike it.

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(Opp’n. at 12:23-27 (emphasis added).)

F.

This

Request for Attorneys’ Fees and Reservation of

Right to Amend
Plaintiffs also move to strike defendants’ reservation

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of their right to amend the Answer and request for costs and

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attorneys’ fees.

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will be prejudiced by these requests, the court will deny their

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motion to strike them.

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Because plaintiffs have failed to show they

See Rosales, 133 F. Supp. At 1180.

IT IS THEREFORE ORDERED that plaintiffs’ motion to

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strike defendants’ affirmative defenses be, and the same hereby

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is, GRANTED as to the fourth defense (“Failure to Exhaust
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Internal Complaint Resolution Procedures”), seventh defense

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(“Managerial Privilege”), eighth defense (“No Vicarious

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Liability”), ninth defense (“Workers Compensation as Exclusive

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Remedy”), and fourteenth defense (“Unclean Hands”), and DENIED in

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all other respects.

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Defendant has twenty days from the date this Order is

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signed to file an amended answer if it can do so consistent with

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this Order.

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Dated:

October 6, 2014

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