Myrah Martinez et al v. County of Sonoma et al

Filing 70

ORDER GRANTING MOTION TO STRIKE by Judge April 1, 2016 granting 61 Motion to Strike.(wsn, COURT STAFF) (Filed on 4/1/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

MYRAH MARTINEZ, et al.,

Case No. 15-cv-01953-JST

Plaintiffs,
8

ORDER GRANTING MOTION TO
STRIKE

v.
9
10

COUNTY OF SONOMA, et al.,
Defendants.

Re: ECF No. 61

United States District Court
Northern District of California

11
Before the Court is Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses from

12
13

Defendants’ Joint Answer. ECF No. 61. The motion is granted.

14

I.

BACKGROUND

15

A.

16

The factual background of this case is well known to the parties and has been discussed at

17

length by the Court in its previous orders on Defendants’ motions to dismiss. See, e.g., Martinez

18

v. County of Sonoma, No. 15-cv-1953-JST, 2016 WL 39753, at *1–2 (N.D. Cal. Jan. 4, 2016).

Factual Background

19

B.

20

Plaintiffs, four individuals who were housed at the Valley of the Moon Children’s Home

21

for various periods of time between 1995 and 2014, filed a Class Action Complaint on April 30,

22

2015, alleging that Defendants have subjected Plaintiffs “ to a host of abuses, including regular

23

strip searches, daily searches of their belongings, restriction of access to their cell phones, physical

24

restraint, being locked into rooms, [being] prevented from contacting family and friends, and

25

[being] denied the right to private telephone conversations.” ECF No. 1 at 1–2. On May 8, 2015,

26

Plaintiffs filed a First Amended Complaint (“FAC”). ECF No. 10. Defendants filed a Motion to

27

Dismiss the FAC, which motion the Court granted in part and denied in part with leave to amend

28

on September 14, 2015. ECF No. 35.

Procedural Background

On September 30, 2015, Plaintiffs filed a Second Amended Complaint (“SAC”). ECF No.

1
2

36. Defendants filed a Motion to Dismiss and a Motion to Strike the SAC, which motion the

3

Court granted in part and denied in part on January 4, 2016. ECF No. 55. Defendants then jointly

4

filed an Answer to the SAC on January 19, 2016. ECF No. 57. On February 9, 2016, Plaintiffs

5

filed a Motion to Strike Defendants’ Answer, ECF No. 61, which motion the Court now considers.

6

II.

MOTION TO STRIKE

7

A.

8

Under Federal Rule of Civil Procedure 12(f), a district court may strike from the pleadings

Legal Standard

“an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A

10

defense is insufficiently pleaded if it fails to give a plaintiff “fair notice” of the nature of the

11
United States District Court
Northern District of California

9

defense. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). Although the Ninth

12

Circuit has not addressed whether the Twombly/Iqbal heightened pleading standard applies to

13

motions to strike affirmative defenses, the Court agrees with the many judges in this district who

14

have found that the Twombly/Iqbal standard applies.1 See, e.g., Hernandez v. County of

15

Monterey, 306 F.R.D. 279, 283 (N.D. Cal. 2015) (“Most district courts in this circuit agree that the

16

heightened pleading standard of Twombly and Iqbal . . . is now the correct standard to apply to

17

affirmative defenses.”) (internal quotation marks omitted); Barnes & Noble, Inc. v. LSI Corp., 849

18

F. Supp. 2d 925, 928 (N. D. Cal. 2012) (“Most courts have held that the Iqbal/Twombly pleading

19

standards apply to affirmative defenses, such that they must state a plausible claim for relief.”);

20

Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1172 (N.D.

21

Cal. 2010) (“The court can see no reason why the same principles applied to pleading claims

22

should not apply to the pleading of affirmative defenses which are also governed by Rule 8.”).
Applying this heightened pleading standard requires a defendant to provide “some valid

23
24

factual basis for pleading an affirmative defense” and allows a district court to “weed out the

25

boilerplate listing of affirmative defenses which is commonplace in most defendants’ pleadings.”

26
1

27
28

While Defendants cite a handful of pre-Twombly cases to support their claim that the pleading
standard for affirmative defenses is lower than that for claims in a complaint, see ECF No. 66 at
5–6, Defendants offer no argument why the Court should hold so in light of Iqbal, Twombly, and
the many district court decisions in this district holding otherwise.
2

1

Barnes, 718 F. Supp. 2d at 1172 (internal quotation marks omitted). “Just as a plaintiff’s

2

complaint must allege enough supporting facts to nudge a legal claim across the line separating

3

plausibility from mere possibility, a defendant’s pleading of affirmative defenses must put a

4

plaintiff on notice of the underlying factual bases of the defense.” Hernandez, 306 F.R.D. at 284.

5

If an affirmative defense is stricken, the court should freely grant leave to amend when doing so

6

would not cause prejudice to the opposing party. Wyshak, 607 F.2d at 826.

7

B.

8

Plaintiffs move to strike each of Defendants’ affirmative defenses. ECF No. 61. Plaintiffs

9

Discussion

argue that Defendants have failed to plead sufficient factual allegations regarding each of their
purported affirmative defenses. Plaintiffs further argue that Affirmative Defense Nos. 1 (failure to

11
United States District Court
Northern District of California

10

state a claim), 2 (failure to mitigate), 7 (the Rooker-Feldman doctrine), 10 (no private right of

12

action), 11 (no properly pleaded class), and 12 (reservation of right to include additional

13

affirmative defenses) are not legally cognizable as affirmative defenses.
Defendants respond that that “factual support for each affirmative defense is clearly

14
15

included in the [A]nswer . . .” because admissions or denials appearing earlier in their Answer

16

serve as the factual basis for their subsequent affirmative defenses. ECF No. 66 at 7. Defendants

17

further argue that Affirmative Defense No. 1 (“Failure to State a Claim”) is a proper affirmative

18

defense. Id. at 7. Defendants do not respond to Plaintiffs’ assertion that Affirmative Defense Nos.

19

2, 7, and 10 are not legally cognizable. With respect to Affirmative Defense No. 11, Defendants

20

argue that to the extent that the affirmative defense is actually a denial that was improperly labeled

21

as an affirmative defense, the affirmative defense should not be stricken because Plaintiffs have

22

suffered no prejudice by the mislabeling. Id. at 8–9. Finally, Defendants concede that what

23

Plaintiffs have labeled as Affirmative Defense No. 12 (the reservation of a right to include

24

additional affirmative defenses) 2 was “not asserted as an affirmative defense.” Id. at 5 (emphasis

25

in original). In this respect, Defendants assert they will seek leave from the court to amend the

26
27
28

2

The Answer states: “Defendants reserve the right to include any additional affirmative defenses
upon the discovery of facts sufficient to support said defenses, and/or dependent upon the outcome
of pending petitions under W & I Code section 827.” ECF No. 57 at 11.
3

1
2
3
4
5
6

Answer should they uncover additional affirmative defenses. Id. at 5.
1. Affirmative Defense Nos. 1 and 11
Plaintiffs first argue that Affirmative Defense Nos. 1 and 11 are not cognizable as
affirmative defenses. ECF No. 61 at 4–5, 13–14.
a.

Affirmative Defense No. 1: Failure to State a Claim

Defendants’ Answer asserts the following affirmative defense: “AS AND FOR A FIRST,

7

SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE to the complaint herein, and each

8

claim for relief thereof, defendants allege that the complaint fails to state facts sufficient to

9

constitute any valid claim for relief against any defendant.” ECF No. 57 at 10.

10

Plaintiffs argue that failure to state a claim “is not an affirmative defense—it is a denial

United States District Court
Northern District of California

11

regarding the sufficiency of Plaintiffs’ factual allegations.” ECF No. 61 at 4 (emphasis in

12

original). Defendants rely on Miller v. Fuhu Inc., No. 14-cv-6119, 2014 WL 4748299, at *2 (C.D.

13

Cal. Sept. 22, 2014) for the proposition that “failure to state a claim” is, in fact, an affirmative

14

defense. ECF No. 66 at 7. Miller cites no authority for this conclusion, however, and there is

15

ample authority for the contrary proposition that “[f]ailure to state a claim is not a proper

16

affirmative defense but, rather, asserts a defect in [a plaintiff’s] prima facie case.” Barnes, 718 F.

17

Supp. 2d at 1174; see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)

18

(“A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative

19

defense.” ); Richmond v. Mission Bank, No. 14-cv-00184, 2014 WL 2002312, at *5 (E.D. Cal.

20

May 15, 2014) (striking failure to state a claim as an affirmative defense in defendant’s answer

21

and noting that “numerous courts have determined this is not a proper affirmative defense because

22

it is simply an assertion of a defect in the complaint”). Accordingly, the Court strikes Defendants’

23

Affirmative Defense No. 1 without leave to amend.

24
25

b.

Affirmative Defense No. 11: Denial of Class Allegations

Defendants’ Answer asserts the following affirmative defense: “AS AND FOR A

26

ELEVENTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE to the complaint herein,

27

and each claim for relief thereof, defendants allege that plaintiffs are not representative of any

28

particular class or classes; that plaintiffs’ claims represent particularized damages such that class
4

1

action status is inappropriate, and therefore plaintiffs lack standing to sue on behalf of unnamed

2

class members.” ECF No. 57 at 11. Plaintiffs argue that “denial of class allegations” “is not an

3

affirmative defense—it is a denial that Plaintiffs can adequately prove or maintain this matter as a

4

class action . . . .” ECF No. 61 at 13 (emphasis in original). Defendants respond that “mere

5

denials may be considered as such especially if the plaintiff has failed to show any prejudice by

6

their presence in an answer . . .” ECF No. 66 at 8. However, Defendants do not cite any authority

7

for the proposition that a denial of class allegations is a proper affirmative defense.
The Court concludes that purported Affirmative Defense No. 11 is not a cognizable

8
9

affirmative defense. See Miller, 2014 WL 4748299, at *2 (finding that purported affirmative
defenses, which sought to attack the plaintiff’s ability to bring a class action were “not affirmative

11
United States District Court
Northern District of California

10

defenses, and [were] more appropriately addressed on a motion for class certification ”); Sanchez

12

v. Roka Akor Chicago LLC, No. 14-cv-4645, 2015 WL 122747, at *3 (N.D. Ill. Jan. 9, 2015)

13

(granting motion to strike purported affirmative defense challenging sufficiency of class

14

allegations and noting “it is . . . clear that class certification is best addressed in the context of a

15

motion that [Defendant] will be able to oppose regardless of the presence of its single-sentence

16

class certification affirmative defense”). As such, this purported defense must be stricken without

17

leave to amend.3

18
2. Affirmative Defense Nos. 2–10

19

Plaintiffs argue that Affirmative Defense Nos. 2–10 are factually insufficient under the

20
21
22
23
24

Twombly/Iqbal pleading standard because each of these defenses “is mere boilerplate, ‘shotgun’
pleading, lacking any supporting allegations specifically tailored to the factual circumstances of
this matter.” ECF No. 61 at 2. Defendants respond that “[r]eading the affirmative defenses in
light of all of the factual allegations of the answer otherwise . . . indicates support factually and

25
3

26
27
28

Plaintiffs also argue that Affirmative Defense Nos. 2, 7, and 10 are not cognizable as affirmative
defenses. Because plaintiffs do not cite any authority that is directly on point and the Court
concludes that these affirmative defenses should be stricken for alternative reasons—namely that
each of these affirmative defenses, as pleaded by Defendants, fails to meet the Twombly/Iqbal
pleading standard—the Court declines to determine whether each of these defenses is cognizable
as an affirmative defense.
5

1

legally for the affirmative defenses raised by the defendants,” ECF No. 66 at 7, despite the fact

2

that each of the affirmative defenses does not explicitly incorporate the prior allegations made in

3

the Answer.
The Court concludes Affirmative Defense Nos. 2–10 each fail to put Plaintiffs “on notice

4
5

of the underlying factual bases of the defense.” Hernandez, 306 F.R.D. at 284. None of the

6

affirmative defenses include any factual allegations at all. It is hard to imagine a more conclusory,

7

boilerplate set of affirmative defenses than those pleaded here.
For example, Defendants’ Fifth Affirmative Defense states in whole: “AS AND FOR A

8
9

FIFTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE to the complaint herein, and
each claim for relief thereof, defendant alleges that the complaint is barred by applicable statute of

11
United States District Court
Northern District of California

10

limitations and/or laches.” ECF No. 57 at 10. “This fails to point to the existence of some

12

identifiable fact that if applicable to [Plaintiffs] would make the affirmative defense plausible on

13

its face.” Id. at 285 (internal quotation marks omitted). “Fair notice pleading is not intended to

14

give parties free license to engage in unfounded fishing expeditions on matters for which they bear

15

the burden of proof.” Id. (internal quotation marks omitted). Accordingly, the Court strikes this

16

affirmative defense from Defendants’ Answer without prejudice.
Because Affirmative Defense Nos. 2–4 and 6–10 are similarly devoid of any factual

17
18

allegations, which would put Plaintiffs on notice for the basis of these affirmative defenses, the

19

Court strikes each of these affirmative defenses without prejudice.
CONCLUSION

20

Plaintiffs’ Motion to Strike is granted with leave to amend regarding Affirmative Defense

21
22

Nos. 2, 3, 4, 5, 6, 7, 8, 9, and 10. The motion is granted without leave to amend with respect to

23

///

24

///

25

///

26

///

27

///

28

///
6

1

Affirmative Defense Nos. 1 and 11. Defendants may file an amended answer within fourteen days

2

of the filing date of this order.

3

IT IS SO ORDERED.

4

Dated: April 1, 2016

5
6
7

______________________________________
JON S. TIGAR
United States District Judge

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7