Aros v. United Rentals Inc et al
RULING granting in part and denying in part 119 Motion to Strike. Signed by Judge Janet C. Hall on 10/31/2011. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANDREAS AROS ET AL.,
UNITED RENTALS, INC., ET AL.,
CIVIL ACTION NO.
OCTOBER 31, 2011
RULING RE: PLAINTIFFS’ MOTION TO STRIKE
DEFENDANTS’ AFFIRMATIVE DEFENSES [Doc. No. 119]
Plaintiffs Andrea Aros and Charles Plomteaux bring this case on their own behalf
and on behalf of current and former Operations Managers and Inside Sales
Representatives against United Rentals, Inc., and United Rentals (North America) Inc.
(collectively “United Rentals”), alleging violations of the Fair Labor Standards Act, 29
U.S.C. §§ 201 et seq. numerous provisions of California labor law and California unfair
competition law. Plaintiffs now move to strike twenty-one of defendants‟ forty-two
affirmative defenses under Federal Rule of Civil Procedure 12(f), arguing that some of
the defenses lack factual support and that others are immaterial as a matter of law.
Plaintiff Andrea Aros first filed this action against his former employers,
defendants United Rentals, Inc., and United Rentals (North America) Inc. (collectively,
“United Rentals”) on January 15, 2010, alleging that United Rentals failed to pay him
overtime wages in violation of the Fair labor Standards Act (“FLSA”), 29 U.S.C. §
207(a)(1). See Compl. (Doc. No. 1). On September 23, 2010, this court granted Aros‟s
Motion for Conditional Certification of FLSA Collective Action, See Ruling (Doc. No. 43),
and with leave of this court on April 25, 2011, Aros and Charles Plomteaux filed an
Amended Complaint on their own behalf and on behalf of current and former Operations
Managers and Inside Sales Representatives, alleging violations of the FLSA and of
numerous provisions of California labor law and California unfair competition law. See
First Am. Class and Collective Action Compl. (Doc. No. 116) (“Am. Compl.”) 9-15
(alleging violations of Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.; Cal Wage
Order No. 4; Cal. Lab. Code §§ 201-03, 218.5, 226, 226.7, 510, 512, 1174, 1174.5,
1194; and Cal. Bus. & Prof. Code § 17200 et seq.). Plaintiffs allege that United Rentals
has deprived plaintiffs of overtime pay to which they are entitled under federal and
California law, and that United Rentals has deprived California plaintiffs of back pay,
accurate records of hours worked, and breaks during shifts longer than five hours to
which they are entitled under California law. Am. Compl. 9-15.
On May 9, 2011, United Rentals timely answered plaintiffs‟ Amended Complaint
and raised forty-two affirmative defenses. See Defs.‟ Answer and Affirm Defenses
(Doc. No. 117) (“Defs.‟ Answer”). On May 31, 2011, plaintiffs filed the instant Motion to
Strike Defendants Affirmative Defenses under Federal Rule of Civil Procedure 12(f),
arguing that some of the defenses lack factual support, and that others are immaterial
as a matter of law. Mot. to Strike Defs.‟ Affirmative Defenses (Doc. No. 119) (“Pls.‟ Mot.
STANDARD FOR STRIKING AFFIRMATIVE DEFENSES
Federal Rule of Civil Procedure 12(f) permits the court to “strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Motions to strike affirmative defenses are generally disfavored.
See, e.g. MTA Metro-North R.R. v. Buchanan Marine, No. 3:05-CV-881-PCD, 2006 WL
3544936 at *3 (D. Conn. Dec. 8, 2006) (citing William Z. Salcer, Panfeld, Edelman v.
Envicon Equities, 744 F.2d 935, 938-39 (2d Cir. 1984), vacated on other grounds, 478
U.S. 1015 (1986)). Courts in this district have adopted a demanding test for plaintiffs to
prevail on a motion to strike affirmative defenses. “„Plaintiffs must establish that: (1)
there is no question of fact which might allow the defense to succeed; (2) there is no
question of law which might allow the defense to succeed; and (3) the plaintiff would be
prejudiced by inclusion of the defense.‟” Marshall v. New Horizons, No. 3:08-CV-633JBA, 2009 WL 2983169 at *1 (D. Conn. Sept. 14, 2009) (quoting MTA Metro-North
R.R., 2006 WL 3544936 at *3; see also D‟Agostino v. Housing Authority, No. 3:05-CV1057-PCD, 2006 WL 1821355 at *1 (D. Conn. June 30, 2006).
Plaintiffs argue that this court should apply the heightened standard for pleading
enunciated in Bell Atlantic Corp. v. Twombly, 550 U.S. 547 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009) to affirmative defenses. See Pls.‟ Mot. to Strike 4 (citing,
inter alia, Schechter v. Comptroller of New York, 79 F.3d 265, 270 (2d. Cir. 1996), for
the proposition that the pleading rule of Twombly and Iqbal applies to affirmative
defenses). In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must
determine whether a plaintiff has stated a legally cognizable claim by making allegations
that, if true, would show she is entitled to relief. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 557 (2007) (interpreting Rule 12(b)(6), in accordance with Rule 8(a)(2), to
require allegations with “enough heft to „sho[w] that the pleader is entitled to relief‟”).
The Second Circuit has not addressed the applicability of Twombly and Iqbal to
affirmative defenses, nor has any circuit court, nor have courts in this district ruled on
that question.1 In Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F. Supp. 2d 620
(S.D.N.Y. 2008), the court first examined Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007),
rev‟d, Ashcroft v. Iqbal, 556 U.S. 662 (2009), to hold that Twombly did not announce a
universal standard of heightened pleading, but rather a flexible standard that requires
only enough to make the claim plausible. Aspex, 531 F. Supp. 2d at 622. The Aspex
court went on to hold that “[t]he standard on a motion to dismiss also applies to a motion
to dismiss a counterclaim pursuant to Rule 12(b)(6) and a motion to strike an affirmative
defense pursuant to Rule 12(f).” Id. (citing FSP, Inc. v. Societe Generale, No. 02 Civ.
4786 (GBD), 2005 WL 475986, at *7-8 (S.D.N.Y. Feb. 28, 2005)).2 Other district courts
in this Circuit have cited Aspex Eyewear for the proposition that Twombly “governs the
sufficiency of the pleading of affirmative defenses.” E.E.O.C. v. Kelly Drye & Warren,
LLP, No. 10 Civ. 665 (LTS), 2011 WL 3163443 at *2 (S.D.N.Y. July 25, 2011); see also
Burck v. Mars et al., 571 F. Supp. 2d 446, 456 (S.D.N.Y. 2008) (citing Aspex); In re
Montagne, Bankr. No. 08-10916, 2010 WL 424224 at *4 (D. Vt. 2010) (same); Tracy v.
NVR, Inc., No. 04-CV-6514-L, 2009 WL 3153150 at *7 (W.D.N.Y. 2009) (same). District
courts outside of this Circuit have divided on whether to apply Twombly and Iqbal to the
pleading of affirmative defenses. See 5 Wright & Miller, Fed. Prac. & Proc. Civ. § 1274
(3d ed. 2011) (noting disagreement among courts); see also Lane v. Page, 272 F.R.D.
Several cases decided in this district after Twombly and Iqbal have applied the familiar standard
to motions to strike affirmative defenses under Rule 12(f) without mentioning the Supreme Court cases or
deciding that they do not apply. See, e.g., New England Health Care Emps. Welfare Fund et al. v. iCare
Mgmt. et al., No. 10-CV-894-CSH, 2011 WL 1643274 (D. Conn. May 2, 2011); Ryan v. Law Offices
Howard Lee Schiff et al., No. 10-CV-1873-CSH, 2011 WL 1060287 at *2 (D. Conn. Mar. 23, 2011);
Marshall et al. v. New Horizons, Inc., 8-CV-633-JBA, 2009 WL 2983169 at *1 (D. Conn. Sept. 14, 2009).
The Aspex court‟s reliance on Iqbal v. Hasty does not necessarily undermine its reasoning in
applying the same standard to affirmative defenses as motions to dismiss, but because the court‟s
reasoning on that point is not evident, it is difficult to evaluate in light of the Supreme Court‟s decision in
Ashcroft v. Iqbal. See Aspex, 531 F. Supp. 2d at 622.
581, 589 n.5 (D.N.M. 2011) (collecting cases extending the standard enunciated in
Twombly and Iqbal to affirmative defenses); id. at 590 n.6 (collecting cases declining to
apply the standard enunciated in Twombly and Iqbal to affirmative defenses).
This court concludes that the reasoning in Twombly and Iqbal does not apply to
Rule 12(f) motions. First, in Twombly, and then in Iqbal, the Supreme Court placed
great reliance on the Rule 8(a)(2) requirement that a pleading must show that the
pleader is entitled to relief. See Fed.R.Civ.P. 8(a)(2) (requiring “a short and plain
statement of the claim showing that the pleader is entitled to relief”); Twombly, 550 U.S.
at 556 n.3; Iqbal, 129 S.Ct. at 1950. In contrast, Rule 8(c)(1), which governs the
pleading of affirmative defenses, requires that “a party must affirmatively state any
avoidance or affirmative defense.” Fed.R.Civ.P. 8(c)(1). See Lane, 272 F.R.D. at 593
(analyzing the differences between Rules 8(a) and 8(b) to find that Twombly and Iqbal
do not apply to affirmative defenses); First Nat‟l Ins. v. Camps Servs., No. 08-CV12805, 2009 WL 22861 at *2 (E.D. Mich. Jan 5., 2009) (noting the difference in
language to support a finding that Twombly does not apply to affirmative defenses).
Moreover, the Supreme Court‟s reasoning in both Twombly and Iqbal reveal the Court‟s
underlying concern: allowing unfounded cases to survive motions to dismiss and
proceed to costly discovery. See, e.g., Twombly, 550 U.S. at 558; Iqbal, 129 S.Ct. at
1953-54 (emphasizing the costs of diverting defendant government‟s resources to any
discovery at all, even where that discovery might be minimally intrusive). See also
Lane, 272 F.R.D. at 596 (“[D]eciding whether a complaint survives a motion to dismiss
may determine whether discovery will occur at all, whereas an affirmative defense at
most affects the scope of discovery”).
Finally, two functional arguments support the decision not to apply Twombly and
Iqbal to affirmative defenses. First, because plaintiffs‟ time to prepare pleadings is
limited only by the statute of limitations, whereas defendants‟ time is limited to twentyone days, it makes sense that plaintiffs‟ claims would be required to meet a higher
standard than defendants‟ affirmative defenses. See Fed.R.Civ.P.12(a)(1)(A)(i); see
also Lane, 272 F.R.D. at 596. Second, a motion to dismiss can resolve a case and
avoid discovery entirely, whereas a motion to strike an affirmative defense can only
prolong pre-discovery motion practice.3 Raising the standard for pleading affirmative
defenses would encourage motions to strike, which are disfavored. See MTA MetroNorth R.R. v. Buchanan Marine, No. 3:05-CV-881-PCD, 2006 WL 3544936 at *3 (D.
Conn. Dec. 8, 2006). Such a decision would undermine Twombly and Iqbal, both of
which attempt to impose a heightened standard of pleading to limit wasteful expansions
of litigation costs.
For all of the above-stated reasons, this court declines to apply the heightened
standard of Twombly and Iqbal to motions to strike affirmative defenses.
Both parties note that defendants have agreed to withdraw eight of the
affirmative defenses at issue. See Pls.‟ Mot. to Strike 2; Defs.‟ Mem. in Opp‟n to Pls.‟
Mot. to Strike Affirmative Defenses (Doc. No. 127) (“Defs.‟ Opp‟n”) 3. The court will
treat this agreement between the parties as an agreed-to motion to withdraw
defendants‟ eighth defense (failure to mitigate), ninth defense (unclean hands), tenth
The court wonders at how much energy and expense was invested in the filing of, and
opposition to, the instant Motion, which energy and expense could better be put to matters that would
advance the determination of the merits of the case. See Fed.R.Civ.P. 1.
defense (laches, waiver, and estoppel), eighteenth defense (failure to exhaust
administrative remedies), twenty-second defense (release and waiver), twenty-third
defense (settlement and release), twenty-fourth defense (proximate cause), and twentyseventh defense (consent to pay system). This Motion is GRANTED.
Defenses Allegedly Factually Insufficient
Second Defense: Failure to Plead a Prima Facie Case
Plaintiffs argue that the Second Affirmative Defense is insufficient because it fails
to identify the factual deficiency alleged. It is well settled, however, that a party may
include failure to state a claim as an affirmative defense in its answer, and that such a
defense is “„invulnerable as against the [12(f)] motion.‟” See MTA Metro-North R.R. v.
Buchanan Marine, No. 3:05-CV-881-PCD, 2006 WL 3544936 at *4 (D. Conn. Dec. 8,
2006) (citing S.E.C. v. Toomey, 866 F. Supp. 719, 723 (S.D.N.Y. 1992)). Furthermore,
there is no indication that United Rentals will be prejudiced by the inclusion of this
defense. Therefore, plaintiffs‟ Motion to Strike United Rentals‟ second defense is
Fifth Defense: Plaintiffs are Exempt Under Relevant Laws
Plaintiffs argue that United Rentals plead that statutory exemptions apply. See
Pls.‟ Mot. to Strike 6 (citing Wright v. Aargo Security Services, No. 99-CV-9115-CSH,
2001 WL 91704 at *2 (S.D.N.Y. Feb. 2, 2001)). In Wright, the defendant had pled that
plaintiff was exempt from the FLSA and state labor laws because of his status as a
white collar employee. Wright, 2001 WL 91704 at *2. The court rejected plaintiff‟s
argument that defendant had waived exemption as an affirmative defense, and held that
the defendant had sufficiently identified the applicable exemption as “white collar,”
which was “specific enough to pass muster.” Id. at *3.
In this case, United Rentals has identified several relevant exemptions by name.
See Defs.‟ Answer 4 (identifying “outside salespeople, retail salespeople, executive,
professional, and/or administrative exemptions”).4 Therefore, plaintiffs‟ Motion to Strike
United Rentals‟ fifth defense is DENIED.
Seventh, Sixteenth, Seventeenth, and Thirty-Sixth Defenses: All Wages
Were Paid; Activities Alleged Are Non-Compensable; Plaintiffs Have Been
Properly Paid; Plaintiffs Are Not Entitled to Overtime.
Plaintiffs move to strike United Rentals‟ seventh, sixteenth, seventeenth, and
thirty-sixth defenses on the ground that defendants have not provided sufficient facts to
support their assertions. See Pls.‟ Mot. to Strike 7-8. While these defenses are spare
and potentially repetitive, they go to the heart of the issues in this case: there are clearly
questions of law and fact that make them potentially viable, and these questions go to
the heart of plaintiffs‟ case. It is therefore difficult to see how plaintiffs‟ sole claim of
prejudice—that they will be burdened by the scope of discovery—would be relevant to
these defenses. Therefore, plaintiffs‟ Motion to Strike United Rentals‟ seventh,
seventeenth, and thirty-sixth defenses is DENIED.
Twelfth and Thirteenth Defenses: Uncompensated Time Was De Minimis;
Defendants are Entitled to an Offset or Credit
Plaintiffs move to strike United Rentals‟ twelfth and thirteenth defenses on the
ground that defendants have not provided sufficient facts to support their assertions.
Plaintiffs further argue that United Rentals must “allege all facts supporting that allegation.” Pls.‟
Mot. to Strike 7 (citing Khan v. IBI Armored Services, 474 F. Supp. 2d 448, 456 (E.D.N.Y. 2007). Insofar
as that case demands more from a defendant, it is in the context of the burden of proof to the tribunal
deciding questions of fact. Reliance on that case in this context is at best misplaced.
See Pls.‟ Mot. to Strike 7-8. Each of these defenses, if true, would entitle United
Rentals to relief. See, e.g., Albrecht v. Wackenhut Corp., 379 Fed. Appx. 65, 67 (2d
Cir. 2010) (finding de minimis activities non-compensable); Harold Levinson Assocs. v.
Chao, 37 Fed. Appx. 19, 22 (2d Cir. 2002) (recognizing that F.L.S.A. defendants may be
credited for some overpayments pursuant to 29 U.S.C. § 207(h)). These portions of
United Rentals‟ Answer put plaintiffs on notice of the legal claims at issue. Therefore,
plaintiffs‟ Motion to Strike United Rentals‟ twelfth and thirteenth defenses is DENIED.
Thirty-Fifth Defense: Plaintiffs Failed to Meet Defendants‟ Realistic
United Rentals‟ thirty-fifth defense alleges that “Plaintiffs‟ First Amended
Complaint as a whole, and each purported cause of action alleged therein, is barred
because Plaintiffs and the alleged putative class members failed to meet Defendants‟
realistic expectations, and the realistic requirements of the position.” Defs.‟ Answer 20.
Plaintiffs‟ argue that this defense is unclear. Pls.‟ Mot. to Strike 10-11.
In response, United Rentals cites Ramirez v. Yosemite Water, 20 Cal. 4th 785,
802 (Cal. 1999). At issue in Ramirez is the definition of “outside salesperson” under the
California regulation that provides an exemption for workers who meet the definition.
Ramirez, 20 Cal. 4th at 795. As part of the determination, the Supreme Court of
California instructed trial courts to consider “how the employee actually spends his or
her time. But the trial court should also consider whether the employee‟s practice
diverges from the employer‟s realistic expectations . . . .” Id. at 802. It is unclear how
plaintiffs‟ failure to perform adequately would constitute a valid defense in this case.
Defendants have already raised the claim that plaintiffs are exempt from overtime as
outside salespeople. See Defs.‟ Answer 6. Because this court cannot determine how
this allegation would constitute a legal or factual defense, plaintiffs‟ Motion to Strike
United Rentals‟ thirty-fifth defense is GRANTED.
Defenses Allegedly Immaterial
Eleventh Defense: Portal-to-Portal Act
United Rentals claims that plaintiffs‟ claims are barred “to the extent Plaintiffs
seek compensation for activities that are non-compensable under the Portal to Portal
Act, including 29 U.S.C. § 254(a).” Defs.‟ Answer 16. The Portal-to-Portal Act provides
an exemption to the FLSA overtime requirements for activities preliminary and postliminary to employees‟ principal activities. 29 U.S.C. § 254(a). Plaintiffs argue that this
defense is immaterial because the plaintiffs have “made no such allegations.” Pls‟ Mot.
to Strike 10.
There exists a question of fact as to whether any of the pay that plaintiffs claim
has been illegally withheld is for activities that are non-compensable under the Portal-toPortal Act. Therefore, plaintiffs‟ Motion to Strike United Rentals‟ eleventh defense is
Fourteenth Defense: Plaintiffs Are Not Entitled to Attorneys‟ Fees
Plaintiffs contend that this defense should be stricken, as attorneys‟ fees are
provided under the state and federal statutes at issue. Pls.‟ Mot. to Strike 11. United
Rentals argues that its defense does not constitute a blanket denial, “but rather a
defense that Plaintiffs are only entitled to „a reasonable attorney‟s fee‟ if they are
successful in this action.” Defs.‟ Opp‟n 12 (citing 29 U.S.C. § 216(b)). Insofar as this
court finds United Rentals‟ argument plausible, it finds this attempt to limit attorneys‟
fees to reasonable attorneys‟ fees is not a proper affirmative defense, as plaintiffs would
bear the burden of proving the reasonableness of attorneys‟ fees. See, e.g., Rivera v.
Corporate Receivables, 540 F. Supp. 2d 329, 337 (D. Conn. 2008). The plaintiffs‟
proper remedy, however, is not a motion to strike. See, e.g., Etienne v. Wal-Mart
Stores, 197 F.R.D. 217, 220-21 (D. Conn. 2000) (where an affirmative defense serves
only to negate an element of plaintiff‟s claim, it should not be considered an affirmative
defense, but should be treated as a specific denial rather than struck). This court
therefore DENIES plaintiffs‟ Motion to Strike this portion of United Rentals‟ Answer.
Thirty-Eighth Defense: Plaintiffs‟ Claims Are Unconstitutionally
Vague and Unconstitutionally Excessive
United Rentals asserts that “[p]laintiffs‟ claim for penalties for each pay period for
which Plaintiffs and the alleged putative class members allegedly were underpaid
wages is unconstitutionally vague.” Defs.‟ Answer 21. “The Due Process Clause of the
Fourteenth Amendment requires that laws be crafted with sufficient clarity to „give the
person of ordinary intelligence a reasonable opportunity to know what is prohibited” and
to “provide explicit standards for those who apply them.” Betancourt v. Bloomberg, 448
F.3d 547, 552 (2d Cir. 2006) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108,
(1972). United Rentals has not identified any particular statute or portion of a statute as
vague, nor any act or behavior the legality of which it claims to be unknowable. So
lacking in specificity, this defense fails to provide plaintiffs with any notice of the legal or
factual allegations being challenged. United Rentals may replead this defense if it is
able to set forth the legal or factual bases for it such that plaintiffs would be on notice.
United Rentals also claims that “[p]laintiffs‟ claim for penalties . . . [is]
unconstitutional as excessive and double fines, under the California Constitution and
the United States Constitution.” Defs.‟ Answer 21. Plaintiffs correctly assert that the
Eighth Amendment‟s ban on excessive fines does not apply in a civil case between
private parties. See Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257, 264 (1989)
(holding that the Eighth Amendment “does not constrain an award of money damages in
a civil suit when the government neither has prosecuted the action nor has any right to
receive a share of the damages awarded”); see also Fenlon v. Brock, 264 Cal. Rptr.
324, 329 (Cal. Ct. App. 1989), abrogated on other grounds by Adams v. Murakami, 813
P.2d 1348, 1354 (Cal. 1991). Therefore, plaintiffs‟ Motion to Strike United Rentals‟
thirty-eighth defense is GRANTED.
For the reasons discussed above, the parties‟ agreed-to Motion to Withdraw
United Rentals‟ eighth, ninth, tenth, eighteenth, twenty-second, twenty-third, twentyfourth, and twenty-seventh defenses is GRANTED. Plaintiffs‟ Motion to Strike
Defendants‟ Affirmative Defenses [Doc. No. 122] is DENIED with respect to United
Rentals‟ second, fifth, seventh, eleventh, twelfth, thirteenth, fourteenth, sixteenth,
seventeenth, thirty-sixth, and GRANTED with respect to United Rentals‟ thirty-fifth and
Dated at Bridgeport, Connecticut this 31st day of October, 2011.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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