Hawkins v. The Kroger Company

Filing 86

ORDER granting in part and denying in part 60 Joint Stipulation to Amend Answer and Motion to Strike Affirmative Defenses. Signed by Judge Jeffrey T. Miller on 11/25/2019. (mme)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

SHAVONDA HAWKINS, on behalf of
herself and all others similarly situated

15

ORDER ON JOINT STIPULATION
TO AMEND ANSWER AND
MOTION TO STRIKE
AFFIRMATIVE DEFENSES

Plaintiff,

13
14

Case No.: 15cv2320 JM(BLM)

v.
THE KROGER COMPANY,
Defendant.

16
17

Presently before the court is Plaintiff Shavonda Hawkins’ motion to strike

18

affirmative defenses filed pursuant to Federal Rules of Civil Procedure Rules 12(f). (Doc.

19

No. 60.) The motion has been briefed and the court finds it suitable for submission on the

20

papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1). For the

21

reasons set forth below, Plaintiff’s motion is granted in part and denied in part.

22

I.

23

On October 15, 2019, Plaintiff Shavonda Hawkins filed this putative class action

24

asserting a myriad of violations of California’s consumer protection laws, along with

25

claims for breach of express warranty and implied warranty of merchantability. All of the

26

claims are premised on the labeling and purported use of partially hydrogenated oil

27

(“PHO”) and trans fat in Kroger Bread Crumbs. (Doc. No. 1, “the Compl.”) Plaintiff

28

alleges that Kroger advertises the product as containing “0g Trans Fat” on the front of the

BACKGROUND

1
15cv2320 JM(BLM)

1

product when, in fact, the product contains more than 0g but less than 0.5g Trans Fat.

2

(Compl. at ¶¶ 6 -9, 79.)

3

On June 7, 2019, Kroger filed an amended answer. (Doc. No. 59.) In response,

4

Plaintiff filed a second motion to strike Defendant’s affirmative defenses. Defendant filed

5

its response in opposition (Doc. No. 65). Plaintiff did not file a reply.

6

II.

7

Under Federal Rule of Civil Procedure 12(f) a court “may strike from a pleading an

8

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.

9

R. Civ. P. 12(f). “The function of a 12(f) motion to strike is to avoid the expenditure of

10

time and money that must arise from litigating spurious issues by dispersing with those

11

prior to trial …” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)

12

(quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other

13

grounds 510 U.S. 517 (1994)). “However, striking the pleadings is considered “an extreme

14

measure,” thus, Rule 12(f) motions are generally “viewed with disfavor and infrequently

15

granted.” Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000) (quoting

16

Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977)); see also 5C CHARLES

17

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE

18

§ 1380 (3d ed. 2010) (“Both because striking a portion of a pleading is a drastic remedy

19

and because it is often sought by the movant simply as a dilatory or harassing tactic,

20

numerous judicial decisions make it clear that motions under Rule 12(f) are viewed with

21

disfavor by the federal courts and are infrequently granted.” (footnotes omitted)).

LEGAL STANDARD

22

A motion to strike “should not be granted unless the matter to be stricken clearly

23

could have no possible bearing on the subject of the litigation. If there is any doubt whether

24

the portion to be stricken might bear on an issue in litigation, the court should deny the

25

motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal.

26

2004). The court is to “view the pleadings in the light most favorable to the non-moving

27

party.” Neilson v. Union Bank of Cal., 290 F. Supp. 2d 1101, 1152 (C. D. Cal. 2003).

28
2
15cv2320 JM(BLM)

1

III.

2

Plaintiff moves to strike eighteen of Defendant’s twenty-four affirmative defenses,

3

asserting that many are boilerplate in nature, have not been pled with the requisite

4

specificity, or fail as a matter of law.

DISCUSSION

5

First, Plaintiff argues that the defenses of failure to state a claim, lack of standing,

6

no misrepresentation, justifiable reliance, causation, unjust enrichment, benefit of the

7

bargain, and the related defenses to class certification of adequacy, commonality,

8

typicality, superiority, predominance, and generality, are not affirmative defenses because

9

they simply negate elements of claims. The court is not persuaded. Although Plaintiff’s

10

reasoning may be sound, because these defenses are sufficient under Rule 8(b), the court

11

declines to strike them simply because they were incorrectly labeled. See, e.g., Natural-

12

Immunogenics Corp. v. Newport Trial Grp., No. 14-2034, 2016 WL 11520759, at *4 (C.D.

13

Cal. Nov. 3, 2016); Pac. Dental Servcs., LLC. 2013 WL 3776337 at *3, 6 (denying motion

14

to strike defenses related to failure to state a claim, damages and class certification;

15

Belvedere P’ship, Ltd. v. SSI Inv. Mgmt., Inc. 2010 WL 11508362, *3 (allowing defense

16

of failure to state a claim, reasoning that an answer is a pleading explicitly provided for in

17

Rule 7(a)).

18

FEDERAL PRACTICE AND PROCEDURE § 1269 (3d ed. 2010) (“[a] defendant may

19

occasionally label his negative averment as an affirmative defense rather than as a specific

20

denial. But as long as the pleading clearly indicates the allegations in the complaint that

21

are intended to be placed at issue, the improper designation should not operate to prejudice

22

the pleader. If the pleader has been given ‘plain notice” of the matters to be litigated … he

23

should be put to his proof on those issues, irrespective of any error by the defendant

24

regarding terminology.”). Finally, the court notes that Plaintiff has failed to show that the

25

inclusion of any of these defenses would result in any prejudice.

See also 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

26

Second, Plaintiff moves to strike the defenses of preemption, primary jurisdiction,

27

puffery and economic loss doctrine, arguing that they fail as a matter of law. For Plaintiff

28

to be successful in her contention that these defenses are insufficient as a matter of law she
3
15cv2320 JM(BLM)

1

would have to demonstrate that “there are no questions of fact, that any questions of law

2

are clear and not in dispute, and that under no set of circumstances could the defense

3

succeed.” Pac. Dental Servs., LLC, v. Homeland Ins. Co. of N.Y., No. SACV 13-749-JST

4

(JPRx), 2013 WL 3776337 (C.D. Cal. July 17, 2013). Plaintiff must clearly show that the

5

affirmative defense could have no possible bearing on the subject of the litigation. Platte

6

,352 F. Supp. 2d at 1057. See also Boba Inc. v. Blue Box Opco LLC, Case No.: 19-cv-

7

00304-H-NLS, 2019 WL 2140597, * 3 (“An affirmative defense is legally insufficient only

8

if it clearly lacks merit under any set of facts the defendant might allege.”) (internal

9

quotations marks and citations omitted); 5C WRIGHT & ARTHUR R. MILLER,

10

FEDERAL PRACTICE AND PROCEDURE § 1381 (3d ed. 2010) (“a defense that might

11

confuse the issues in the case and would not, under the facts alleged, constitute a valid

12

defense to the action can and should be deleted).

13

In regard to the defense of pre-emption, it is not precluded to the extent it is used

14

consistent with the prior orders issued in this case. On appeal, the Ninth Circuit held that

15

Plaintiff’s labeling claims are not pre-empted but declined to address the preemption issue

16

in regard to the use claims, therefore it left “it to the district court on remand to decide in

17

the first instance to what extent, if at all, the state law use claims are federally preempted.”)

18

(Doc. No. 27 at 10, 17.) In the second round of motion to dismiss briefing, in discussing

19

whether the use of PHO claims were preempted, this court concluded: (1) “the statement

20

“0g Trans Fat,” contained in the nutrition label is preempted (Doc. No. 40 at 6); and (2) “the

21

statement “0g Trans Fat,” made outside the nutrition label, is not preempted because it does

22

not impermissibly conflict with federal law.” (Doc. No. 40 at 7.). The affirmative defense

23

of primary jurisdiction is, however, stricken as the court sees no circumstance where it

24

need apply in this case. See United States v. W. Pac. R. R. Co., 352 U.S. 59, 64 (1956)

25

(citation omitted) (“it applies where a claim is originally recognizable in the courts, and

26

comes into play whenever enforcement of the claim requires the resolution of issues which,

27

under a regulatory scheme, have been placed within the special competence of an

28

administrative body; in such case the judicial process is suspended pending referral of such
4
15cv2320 JM(BLM)

1

issues to the administrative body for its views.”) At this stage of the litigation, both the

2

puffery and economic loss doctrine defenses are not precluded given the court’s present

3

inability to determine whether the challenged defenses would not, under the facts alleged,

4

constitute valid defenses.

5

Finally, the court turns to the Plaintiff’s third argument for dismissal, and begins by

6

noting that Plaintiff has supplied the court with no binding authority for her assumption

7

that the heightened pleading standards of Bell Atlantic Corporation v. Twombly, 550 U.S.

8

544 (2007), apply to affirmative defenses, and the court is unaware of any circuit court that

9

has addressed this issue. This court previously held in Henry v. Ocwen Loan Servicing,

10

LLC, CASE NO. 17cv0688 JM(NLS), 2018 WL 1101097, at * 2-3 (S.D. Cal. Feb. 26,

11

2018), that it would not apply such a heightened pleading standard to Defendant’s

12

affirmative defenses (noting that under this standard even boiler-point defenses “that are

13

not necessarily applicable under the particular circumstances of the case” can survive a

14

motion to strike). The court continues to stand by its reasoning, finding “[t]he key to

15

determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff

16

fair notice of the defense.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979)

17

(citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). Applying this standard, Defendant

18

has plainly stated its “boilerpoint” affirmative defenses of justifiable reliance, third parties,

19

laches, unclean hands, waiver/consent/release, estoppel, unjust enrichment, benefit of the

20

bargain, and statute of limitation. Accordingly, the court declines to strike on these

21

grounds.

22

In sum, a majority of the defenses challenged by Plaintiff depend on the development

23

of facts through discovery and summary judgment. At this stage of the litigation, when

24

discovery is just beginning, the court is unwilling to take the extreme measure of limiting

25

///

26

///

27

///

28
5
15cv2320 JM(BLM)

1

the defenses available to Defendant. Accordingly, Plaintiff’s motion to strike the eighteen

2

affirmative defenses of Defendant is GRANTED IN PART and DENIED IN PART.

3

IT IS SO ORDERED.

4

Dated: November 25, 2019

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
15cv2320 JM(BLM)