Kaur et al v. City of Lodi et al

Filing 102

ORDER signed by Judge Garland E. Burrell, Jr. on 9/18/2015 GRANTING Plaintiffs' 91 motion to strike; Defendants have 14 days leave from the date on which this order is filed to file an amended answer addressing any affirmative defense. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUKHWINDER KAUR, individually
and as the successor in
interest for the Decedent
PARMINDER SINGH SHERGILL;
KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,

No. 2:14-cv-00828-GEB-AC

ORDER GRANTING PLAINTIFFS’
MOTION TO STRIKE

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Plaintiff,
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v.
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CITY OF LODI; CITY OF LODI
POLICE DEPARTMENT; MARK
HELMS, in his individual
capacity as the Chief of
Police for the City of Lodi;
SCOTT BRATTON, in his
individual capacity as a City
of Lodi Police Officer; ADAM
LOCKIE, in his individual
capacity as a City of Lodi
Police Officer,

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Defendants.
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Plaintiffs

seek

an

order

striking

the

fourteen

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affirmative defenses asserted by Defendants City of Lodi, City of

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Lodi Police Department, and Mark Helms. (Pls.’ Mot. to Strike

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Affirmative Defenses (“Mot.”), ECF No. 91.) Plaintiffs’ motion is

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brought under Federal Rule of Civil Procedure (“Rule”) 12(f).

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(Mot. 1:17–19.) Plaintiffs argue their motion should be granted

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because each asserted affirmative defense is either inapplicable

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or insufficiently pled.
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I.

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Rule

8(b)

of

LEGAL STANDARD

the

Federal

Rules

of

Civil

Procedure

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requires a party to state “in short and plain terms its defenses

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to each claim asserted against it.” Fed. R. Civ. P. 8(b)(1)(A).

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Furthermore,

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pleading an insufficient defense or any redundant, immaterial,

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impertinent, or scandalous matter.”

Rule

12(f)

permits

a

court

to

“strike

from

a

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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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563–64 (S.D. Cal. 2012). An affirmative defense is insufficient

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as a matter of law if it “lacks merit under any set of facts the

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defendant might allege.” Dodson v. Strategic Rests. Acquisition

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

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internal

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insufficient as a matter of pleading if it fails to satisfy the

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applicable pleading standard.

quotation

marks

omitted).

An

affirmative

defense

is

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The parties dispute which pleading standard applies to

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Plaintiffs’ motion. Plaintiffs argue that the heightened pleading

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standard explained in Bell Atlantic Corp. v. Twombly, 550 U.S.

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544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies.

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(Mot. 2:27–28; 3:1–2.) This standard requires a party alleging a

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claim to include enough facts in the claim to evince that the

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claim “is plausible on its face.” Twombly, 550 U.S at 570.

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Defendants

counter

that

the

Ninth

Circuit

has

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“announced that the fair notice standard continues to govern the

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sufficiency of pleading affirmative defenses in wake of the Iqbal

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and Twombly decisions.” (Defs.’ Opp’n to Mot. (“Opp’n”) 4:20–22,
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ECF No. 94.) Under the fair notice pleading standard, “[t]he key

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to determining the sufficiency of pleading an affirmative defense

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is whether it gives plaintiff fair notice of the defense.” Wyshak

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v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979).

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However, the parties’ dispute concerning the applicable

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pleading standard need not be resolved here since even under the

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lesser Wyshak fair notice pleading standard, Plaintiffs’ motion

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will be granted.

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II.

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A.

DISCUSSION

First Affirmative Defense: Good Faith

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Defendants assert in their first affirmative defense

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“[t]hat at all times mentioned in the complaint on file herein,

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and immediately prior thereto, Defendants acted in good faith[.]”

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(Defs.’ Answer to Third Am. Compl. (“Answer”) 14:20–21, ECF No.

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90.)

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viable

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affirmative defense is stricken.

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This

B.

conclusory

affirmative

assertion
defense.

does

not

adequately

Therefore,

notice

Defendants’

a

first

Second, Third, Sixth, Tenth, and Fourteenth Affirmative

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Defenses:

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Constitute a Cause of Action, Fails to State a Claim,

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Punitive Damages, and Due Process Available

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Defendants concur that the second, third, sixth, tenth,

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and fourteenth affirmative defenses are not proper since these

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defenses state a defect in Plaintiffs’ prima facie case. (Opp’n

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6:21–26, 7:22–28); see Zivkovic v. S. Cal. Edison Co., 302 F.3d

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1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that

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plaintiff has not met its burden of proof is not an affirmative

Failure

to

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3

Allege

Facts

Sufficient

to

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defense.”). Therefore, Defendants’ second, third, sixth, tenth,

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and fourteenth affirmative defenses are stricken.

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C.

Fourth,

Fifth,

and

Seventh

Affirmative

Defenses:

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Immunities

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Defendants also concur with Plaintiffs that the fourth,

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fifth,

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Plaintiffs with “fair notice of any specific defense.” (Opp’n

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7:11–15

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fifth, and seventh affirmative defenses are stricken.

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and

D.

seventh

(citation

affirmative

omitted).)

defenses

Therefore,

fail

to

Defendants’

provide

fourth,

Eighth Affirmative Defense: Reservation of Affirmative

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Defenses

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Defendants’ eighth affirmative defense states in part:

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“Defendants

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additional affirmative defenses if and to the extent that such

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affirmative defenses become applicable[.]” (Answer 15:17–18.)

expressly

reserves

[sic]

the

right

to

assert

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Plaintiffs argue this is not an affirmative defense.

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(Mot. 9:11.) Defendants seem to agree and acknowledge they “need

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not reserve the right to amend . . . .” (Opp’n 8:3–4.)

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The “‘reservation of affirmative defenses’ is not an

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affirmative defense.” E.E.O.C. v. Timeless Invs., Inc., 734 F.

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Supp.

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eighth affirmative defense is stricken.

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2d

E.

1035,

1055

(E.D.

Cal.

2010).

Therefore,

Defendants’

Ninth Affirmative Defense: Comparative Negligence

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Defendants’ ninth affirmative defense states:

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Defendants assert that if Defendants are
adjudged, decreed, or otherwise determined to
be liable to Plaintiff, then in that event,
Defendants will be entitled to apportion the
degree of their fault or responsibility for
said incident attributable to the Plaintiff
or to any other Defendants named herein or
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yet to be named. The amount of damages
attributable to these answering Defendants is
to be abated, reduced, or eliminated to the
extent that the Plaintiffs’ own negligence,
or the negligence of any other Defendants,
contributed
to
the
Plaintiffs’
claimed
damages,
if
any
there
were.
This
apportionment
of
damages
is
to
be
administered
in
accordance
with
the
principles of equity and pursuant to the
doctrine
of
comparative
negligence
and
pursuant to Civil Code Section 1431.2.

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(Answer 15:19–27.)
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Plaintiffs

argue

“Defendants’

assertion

of

this

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affirmative

defense

is

completely

devoid

of

the

requisite

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facts . . . . provid[ing] ‘fair notice’ of this defense.” (Mot.
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10:18–21.) Defendants counter that this affirmative defense is
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sufficient because it is similar to an affirmative defense upheld
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in Edwards v. County of Modoc, No. 2:14–cv–02646–MCE–KJN, 2015 WL
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4456180 (E.D. Cal. July 20, 2015), where “Defendants allege[d]
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that Plaintiff’s contributory negligence caused and contributed
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to his damages.” Id. at *3.
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“A bare assertion of negligence or contributory fault
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without ‘any indication of the conduct supporting the defense’
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does

not

pass

muster,

even

under

the

fair

notice

standard.”

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Devermont v. City of San Diego, No. 12-CV-01823 BEN (KSC), 2013
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WL 2898342, at *6 (S.D. Cal. June 14, 2013) (quoting Roe v. City
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of San Diego, 289 F.R.D. 604, 611–12 (S.D. Cal. 2013)). Here,
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Defendants

do

not

affirmative

defense.

indicate

any

conduct

supporting

this

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Therefore,

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defense is stricken.
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5

Defendants’

ninth

affirmative

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F.

Eleventh

Affirmative

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Defendants’

Failure

to

Mitigate

Damages

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Defense:

eleventh

affirmative

defense

states

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“Plaintiffs have failed to mitigate their damages, if any there

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are[.]” (Answer 16:3–4.)

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Plaintiffs argue this affirmative defense is irrelevant

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and

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damages are ‘continuing.’” (Mot. 11:17–18.) Defendants counter

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that Plaintiffs’ Third Amended Complaint (“TAC”) both does, and

immaterial

since

“Plaintiffs

have

not

alleged

that

their

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does

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deprivation of association claim . . . does not clearly indicate

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whether they suffer from continuing or enhanced damages,” (Opp’n

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9:15–17), and “Plaintiff has admitted in its TAC to continuing

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damages.”

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association claims (Third and Fourth Claims) are not asserted

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against Defendants City of Lodi, City of Lodi Police Department,

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and Mark Helms. (TAC ¶¶ 80, 85; Answer 9:10–19.) Plaintiffs state

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in

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properly state a claim for continuing damages” and therefore, “a

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failure to mitigate claim is appropriate.” (Pls.’ Reply to Opp’n

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to Mot. (“Reply”) 6:18–19, ECF No. 97.)

not,

their

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allege

(Opp’n

Reply

such

9:22.)

brief:

damages,

However,

“Plaintiffs

contending:

Plaintiffs’

agree

that

“Plaintiffs’

deprivation

the

of

allegations

Plaintiffs further argue “Defendants have not properly

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stated

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counter that this affirmative defense provides fair notice. (See

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Opp’n 9:23–25.)

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[this

affirmative

However,

defense].”

Defendants’

(Mot.

failure

to

11:21.)

mitigate

Defendants

affirmative

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defense “gives no notice to [Plaintiffs] of the basis of [their]

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alleged

failure

to

mitigate.”

Kohler
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v.

Staples

the

Office

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Superstore, LLC, 291 F.R.D. 464, 469 (S.D. Cal. 2013). Contra

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Eurow & O’Reilly Corp. v. Superior Mfg. Group, Inc., No. CV 14-

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6595-RSWL VBKX, 2015 WL 1020116, at *3 (C.D. Cal. Mar. 6, 2015)

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(“Though [p]laintiff does not allege specific facts to support

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its allegation, [c]ourts have typically held that a generalized

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statement . . . meets [a party’s] pleading burden with respect to

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the affirmative defense of damage mitigation.” (alterations in

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original) (citation and internal quotation marks omitted)).

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Therefore, Defendants’ eleventh affirmative defense is
stricken.

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G.

Twelfth Affirmative Defense: Immunity

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Defendants assert in their twelfth affirmative defense

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they are immune from liability as a result of
executive and/or legislative and/or judicial
immunity under the common law, United States
statutes, and the opinions of the State and
Federal Courts interpreting these laws. Chief
Mark Helms contends that he is entitled to
the defense of qualified immunity. City of
Lodi contends that Officer Bratton and Lockie
[the “Officer Defendants”] are entitled to
the defense of qualified immunity[.]

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(Answer 16:5–9.)
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Plaintiffs

argue

“the

[first]

sentence

should

be

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stricken because it is ‘redundant’ under Rule 12(f)[,]” and fails
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to provide fair notice of the asserted immunities. (Mot. 12:16–21
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(referring

to

arguments

made

for

the

fourth

affirmative

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defense).) Defendants counter that the first sentence should not
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be

stricken

because

“the

first

sentence

lists

the

applicable

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background authority Defendants will rely upon in asserted [sic]
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the qualified immunity defense.” (Opp’n 10:26–27.)
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The first sentence is stricken since it is evident that
it fails to provide fair notice of what is asserted.

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Plaintiffs also challenge the second sentence for the

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first time in their Reply brief. (Reply 7:18–28.) However, “[t]he

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district court need not consider arguments raised for the first

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time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th

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Cir. 2007). Therefore, this argument is disregarded.

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Plaintiffs also challenge the third sentence, arguing
that

the

Officer

Defendants

“are

separately

represented

and

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Defendant City of Lodi cannot raise this [qualified immunity]

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defense on behalf of another party.” (Mot. 12:23–27 (citations

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and internal quotation marks omitted).) Defendants counter that

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Defendant City of Lodi has properly asserted qualified immunity

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on

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Lodi’s liability is contingent on whether the Officer Defendants’

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conduct was unlawful. (Opp’n 11:14–17, 12:20–22.)

behalf

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of

the

Officer

Defendants

since

Defendant

City

of

The affirmative defense as stated, however, does not

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put

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immunity relates to Defendant City of Lodi’s liability or the

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basis

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affirmative defense which can be asserted by certain individuals.

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Therefore, the third sentence is stricken.

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Plaintiffs

for

H.

on

notice

Defendant

Thirteenth

City

as

to

of

how

Lodi’s

Affirmative

the

Officer

standing

Defense:

to

Defendants’

assert

Self-Defense

an

and

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Defense of Others

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Defendants assert “[t]hat at all times mentioned in the

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[TAC] . . . and immediately prior thereto, Defendants acted in

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self-defense and in the defense of others[.]” (Answer 16:10–11.)

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Plaintiffs argue “[t]his affirmative defense makes no sense in
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the context of the answering City Defendants, because none of

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those answering City Defendants was at the scene of the incident

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when Parminder Singh Shergill was shot to death.” (Mot. 13:7–9.)

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Defendants

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defense. (Opp’n 13:3–18.)

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counter

Defendants

that

Defendant

have

not

City

provided

of

Lodi

asserts

Plaintiffs

with

this

fair

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notice of the factual basis supporting this affirmative defense.

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See Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049

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(N.D.

Cal.

2004)

(striking

affirmative

defenses

of

waiver,

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estoppel, and unclean hands in part because defendant “fail[ed]

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to

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affirmative defense is stricken.

allege

the

factual

13

basis”).

III.

Therefore,

the

thirteenth

CONCLUSION

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For the reasons stated, Plaintiffs’ motion to strike is

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granted. Defendants have fourteen (14) days leave from the date

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on which this order is filed to file an amended answer addressing

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any affirmative defense.

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Dated:

September 18, 2015

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