Hardy v. Sisson et al
Filing
48
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barry M. Kurren on 11/09/2016 RECOMMENDING that Plaintiffs 39 Motion to Strike Defendants Affirmative Defenses be Granted in Part and Denied in Part. Motion referred to Judge Garland E. Burrell, Jr. Objections to F&R due within 14 days. (Butolph, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
KRISTIN HARDY,
Plaintiff,
vs.
D. SISSON,
Defendant.
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2:13-cv-02514-GEB-BMK
FINDINGS AND
RECOMMENDATIONS TO GRANT
IN PART AND DENY IN PART
PLAINTIFF’S MOTION TO STRIKE
DEFENDANT’S AFFIRMATIVE
DEFENSES
FINDINGS AND RECOMMENDATIONS TO
GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
Before the Court is Plaintiff Kristin Hardy’s Motion to Strike
Defendant D. Sisson’s Affirmative Defenses (Doc. 39). After careful consideration
of the Motion and the supporting and opposing memoranda, the Court finds and
recommends that Plaintiff’s Motion be GRANTED IN PART and DENIED IN
PART. Specifically, Defendant withdraws the second affirmative defense, and the
Court therefore recommends striking it. The Court recommends declining to strike
the remaining affirmative defenses.
DISCUSSION
A Court may strike affirmative defenses under Federal Rule of Civil
Procedure 12(f) if they present an “insufficient defense, or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The
purpose of a 12(f) motion to strike is to “avoid the expenditure of time and money
that must arise from litigating spurious issues by dispensing with those issues prior
to trial.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), reversed on
other grounds, 510 U.S. 517 (1994). A defense is insufficiently pled if it fails to
give the plaintiff “fair notice of the nature of the defense.” Wyshak v. City Nat’l
Bank, 607 F.2d 824, 827 (9th Cir.1979). A matter is immaterial if it has “no
essential or important relationship to the claim for relief or the defenses being
pleaded.” Fogerty, 984 F.2d at 1527. A matter is impertinent if it “consists of
statements that do not pertain, and are not necessary, to the issues in question.” Id.
“While a Rule 12(f) motion provides the means to excise improper
materials from pleadings, such motions are generally disfavored because the
motions may be used as delaying tactics and because of the strong policy favoring
resolution on the merits.” Barnes v. AT&T Pension Ben. Plan-Nonbargained
Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010). Accordingly, once an
affirmative defense has been properly pled, “a motion to strike which alleges the
legal insufficiency of an affirmative defense will not be granted ‘unless it appears to
a certainty that plaintiffs would succeed despite any state of the facts which could be
proved in support of the defense.’” Id.; see also McArdle v. AT&T Mobility LLC,
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657 F. Supp. 2d 1140, 1149-50 (N.D. Cal. 2009).
A. First Affirmative Defense
As its first affirmative defense, Defendant states that he “is immune
from suit or entitled to qualified immunity.” (Answer at 4.) Plaintiff argues that
this defense should be stricken because “qualified immunity can only be asserted as
a protection against money damages.” (Motion at 1.)
Plaintiff’s Second Amended Complaint (“SAC”) prays for injunctive
relief as well as “any other relief deemed just and equitable.” (SAC at 28-30.) In
civil rights cases where the plaintiff appears pro se, courts “must construe the
pleadings liberally and must afford plaintiff the benefit of any doubt.”
Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Therefore, the Court liberally construes Plaintiff’s prayer for “any other relief” to
include possible money damages. To the extent Plaintiff may be seeking money
damages in this case, Defendant is permitted to raise the affirmative defense of
qualified immunity. Am. Fire, Theft & Collision Managers, Inc. v. Gillespie, 932
F.2d 816, 818 (9th Cir. 1991) (“Qualified immunity is an affirmative defense to
damage liability; it does not bar actions for declaratory or injunctive relief.”). The
Court therefore recommends against striking this defense.
B. Second Affirmative Defense
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Defendant states in its Opposition that it withdraws this defense (failure
to allege facts sufficient to state a claim upon which relief can be granted).
Therefore, the Court recommends striking this defense.
C. Third Affirmative Defense
In its third affirmative defense, Defendant asserts that “Plaintiff failed
to allege facts sufficient to state a claim for injunctive or declaratory relief.” (SAC
at 4.) Defendant argues that, in order to obtain the injunctive relief Plaintiff wants,
Plaintiff “must demonstrate that the entity’s policy or custom played a part in the
violation of plaintiff’s rights.” (Opp. at 3.) Because Plaintiff makes no allegations
about a policy or custom in his complaint, Defendant argues that his allegations do
not support a claim for injunctive relief.
Plaintiff argues that this defense should be stricken because “it has
already been determined by this court that the complaint adequately states a claim
for relief.” (Motion at 2.) When the Court screened Plaintiff’s complaint, the
Court stated that the “complaint appears to state a cognizable claim for relief.”
(Doc. 5 at 1.) Later, in ruling on a Motion to Dismiss, the Court stated that
Plaintiff’s allegations “may in fact be a denial of due process.” (Doc. 30 at 6.)
However, in both orders, the Court made clear that Plaintiff would need to produce
evidence to prevail on the merits. (Doc. 5 at 2; Doc. 30 at 6.) As Defendant
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argues, the merits of this claim and/or defense will be further developed through
discovery. Inasmuch as discovery is ongoing and this defense is not insufficient,
redundant, immaterial, or impertinent, the Court recommends against striking it.
See Fed. R. Civ. P. 12(f).
D. Fourth and Fifth Affirmative Defenses
In his fourth and fifth affirmative defenses, Defendant states that
Plaintiff’s claims are barred by the doctrines of res judicata and claim preclusion
“[t]o the extent that Plaintiff has previously litigated the issues raised in the
Amended Complaint.” (Answer at 4.) Plaintiff argues that there is no evidentiary
basis for these defenses and should therefore be stricken.
Defendant raised these defenses as a precaution in case discovery or
further investigation reveals that Plaintiff’s claim was previously litigated or raised
in a state habeas petition. Because discovery is ongoing and it remains uncertain
whether Plaintiff litigated this claim before, the Court recommends against striking
Defendant’s fourth and fifth affirmative defenses at this time. See Fed. R. Civ. P.
12(f).
E. Sixth and Seventh Affirmative Defenses
In his sixth and seventh affirmative defenses, Defendant states that
“Plaintiff failed to mitigate his injuries” and Plaintiff’s injuries were caused by his
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own actions or omissions. (Answer at 4.) Plaintiff argues that there is no
evidentiary basis to support these defenses. (Motion at 2.)
Defendant raised these defenses because the extent of Plaintiff’s
injuries and Plaintiff’s role in his injuries are unclear. (Opp. at 4.) Defendant
intends to further develop the record regarding Plaintiff’s injuries through discovery.
As above, since discovery is ongoing and these defenses are not insufficient,
redundant, immaterial, or impertinent, the Court recommends against striking
Defendant’s sixth and seventh affirmative defenses at this time.
CONCLUSION
In light of the foregoing, the Court finds and recommends that
Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses (Doc. 39) be
GRANTED IN PART and DENIED IN PART. Specifically, the Court
recommends striking Defendant’s second affirmative defense for failure to allege
facts sufficient to state a claim upon which relief can be granted. The Court
recommends against striking Defendant’s remaining affirmative defenses.
These Findings and Recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. §
636(b)(1). Within fourteen (14) days after being served with these Findings and
Recommendations, any party may file written objections with the Court. Local
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Rule 304(b). The document shall be captioned “Objections to Magistrate Judge’s
Findings and Recommendation.” Responses, if any, are due within fourteen (14)
days after being served with the objections. Local Rule 304(d). The parties are
advised that failure to file objections within the specified time may result in the
waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 9, 2016
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Kristin Hardy v. D. Sisson, 2:13-cv-02514-GEB-BMK, FINDINGS AND
RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES.
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