Vale v. City of New Haven Police Dept

Filing 76

ORDER (see attached) - DENYING 29 Plaintiff's Motion to Strike several of Defendant's affirmative defenses. Signed by Judge Charles S. Haight, Jr. on 10/4/13. (Hornstein, A)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

KIMBERLY VALE,
Plaintiff,

3:11-CV-00632 (CSH)

v.
October 4, 2013
CITY OF NEW HAVEN POLICE
DEPARTMENT,
Defendant.

ORDER
I.

INTRODUCTION
Plaintiff Kimberly Vale (hereinafter "Plaintiff") initiated this action in the Connecticut

Superior Court in late March of 2011, bringing claims against Defendant City of New Haven Police
Department (hereinafter "Defendant") under both C.G.S.A. § 46a-60(a)(1) and C.G.S.A. § 31-51q.
In her initial Complaint, Plaintiff alleged that she had been discriminated against by Defendant City
of New Haven Police Department, for which she had formerly been employed on a full-time
probationary basis, due to her age. Plaintiff further alleged that she had been retaliated against by
Defendant because Defendant suspected her of having "engaged in the protected activity of
complaining about possible violations of the state and federal wage and hour laws, a matter of public
concern." [Doc. 1] at 15. Defendant filed a motion in Connecticut Superior Court in April of 2011
to remove the matter to federal court, contending that Plaintiff's C.G.S.A. § 31-51q claim
"necessarily turn[ed] on the construction of federal law and the First Amendment of the United

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States Constitution for which Congress has provided a cause of action under 42 U.S.C. § 1983."
[Doc. 32] at 1-2; see also [Doc. 1] at 2. Plaintiff's subsequent Motion to Remand to State Court,
[Doc. 10], was denied in October of 2011. See [Doc. 18].
Defendant filed its Answer and Affirmative Defenses to Plaintiff's initial Complaint in
December of 2011. See [Doc. 27]. Thereafter, Plaintiff filed a Motion to Strike several of
Defendant's affirmative defenses. [Doc. 29]. The Court now rules upon Plaintiff's Motion to Strike.
By separate Ruling filed together with this one, the Court grants Plaintiff's Motion to Amend her
complaint. That does not alter the reasons or result of this Ruling.
II.

DISCUSSION
Defendant raises ten affirmative defenses in its Answer and Affirmative Defenses to

Plaintiff's initial Complaint. See [Doc. 27] at 6-7. Plaintiff now moves to strike six of these
affirmative defenses – numbers 1, 2, 3, 5, 6, and 7 – "because the Defendants do not allege facts
sufficient to support the alleged affirmative defenses." [Doc. 29] at 1.1 The six contested affirmative
defenses are:
First Affirmative Defense
Plaintiff fails to state a claim against Defendant.
Second Affirmative Defense
Plaintiff has failed to exhaust her administrative remedies.

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While parts of Plaintiff's Motion to Strike and accompanying Memorandum of Law
appear to address an alleged pleading deficiency in all ten of Defendant's affirmative defenses,
Plaintiff explicitly states in her Motion to Strike that she "respectfully moves this Court to strike
[a]ffirmative [d]efenses numbers 1, 2, 3, 5, 6, and 7." [Doc. 29] at 1. Accordingly this Court
addresses only these six affirmative defenses in this ruling. However, the Court notes that for the
same reasoning detailed infra with respect to those six affirmative defenses, it believes that the
four additional affirmative defenses – 4, 8, 9, and 10 – have been set forth satisfactorily under all
relevant Rules and precedent, and would therefore withstand any motion to strike.
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Third Affirmative Defense
Plaintiff failed to mitigate her damages.
Fifth Affirmative Defense
Any loss or damage sustained by Plaintiff was occasioned by the acts or omissions of the
Plaintiff.
Sixth Affirmative Defense
Defendant reserves the right to rely upon other affirmative defenses as may be supported by
facts to be determined through discovery.
Seventh Affirmative Defense
Plaintiff's claims are barred in whole or in part by the applicable statute of limitations.
See [Doc. 29] at 1 (listing these six affirmative defenses as contested); [Doc. 27] at 6 (listing
Defendant's affirmative defenses).
Plaintiff contends that pursuant to Fed. R. Civ. P. 12(f) these six contested "affirmative
defenses should be stricken on the grounds that they are insufficient and do not comply with the
pleading requirements set forth" in two now-familiar United States Supreme Court cases: Bell
Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). [Doc. 27]
at 4. Specifically, Plaintiff contends that "Defendants have given no factual support whatsoever for
any of its ten affirmative defenses," and, further, that while these affirmative defenses "are fact
specific ... Defendant has pleaded mere legal conclusions." Id. at 3. Accordingly, Plaintiff moves
the court to strike six of Defendants' affirmative defenses, as – as Plaintiff contends – "[d]efendants
who raise special defenses are held to the same standard rules of pleading as plaintiffs are held to
in their complaints." Id. at 6.
Defendant filed a brief in opposition to Plaintiff's Motion to Strike, in which Defendant avers
that "Plaintiff's motion is premised on the adoption of a heightened pleading standard for affirmative
defenses rather than the applicable standard of law in this [d]istrict" and, as such, ought to be
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denied. [Doc. 32] at 3 (emphasis added). The Court agrees with Defendant. As an initial matter,
while 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," courts in this
district have repeatedly and consistently held that "[m]otions to strike affirmative defenses are
generally disfavored." Aros v. United Rentals, Inc., No. 3:10-CV-00073, 2011 WL 5238829 at *1
(D.Conn. Oct. 31, 2011); see also, e.g., MTA Metro-North R.R. v. Buchanan Marine, No. 3:05-CV00881, 2006 WL 3544936 at *3 (D.Conn. Dec. 8, 2006).
Further, contrary to Plaintiff's contention that the heightened pleading standards set forth in
Bell Atlantic Corp v. Twombly and Ashcroft v. Iqbal ought to be applied to affirmative defenses,
courts in this district have consciously and conscientiously adopted and reiterated, post- Bell Atlantic
Corp v. Twombly and Ashcroft v. Iqbal, the test on which plaintiffs must "prevail on a motion to
strike affirmative defenses," which, as they have remarked, creates a standard for affirmative
defenses which is not nearly so heightened as that set forth by Bell Atlantic Corp v. Twombly and
Ashcroft v. Iqbal. See, e.g., Aros v. United Rentals, Inc., 2011 WL 5238829 at *1; Whitserve, LLC
v. GoDaddy.com, Inc., No. 3:11-CV-00948, 2011 WL 5825712 at *2 (D.Conn. Nov. 17, 2011).
Two 2011 decisions by now-Chief Judge Hall are particularly instructive in this regard: Aros
v. United Rentals, Inc., 2011 WL 5238829 and Whitserve, LLC v. GoDaddy.com, Inc., 2011 WL
5825712. In both these decisions, Judge Hall (as she then was) addressed arguments raised by
plaintiffs which were nearly identical to that now raised by Plaintiff in the case at bar, i.e., that the
court should apply the heightened standard for pleading articulated in Bell Atlantic Corp v. Twombly
and Ashcroft v. Iqbal in its evaluation of any motions to strike. While acknowledging that "this
question [was] unsettled among courts," in both cases Judge Hall "decided that the heightened
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pleading standard set forth in Twombly and Iqbal does not apply to a Motion to Strike affirmative
defenses." Whitserve, LLC v. GoDaddy.com, Inc., 2011 WL 5825712 at *2; Aros v. United Rentals,
Inc., 2011 WL 5238829 at *2-3. Rather, Judge Hall affirmed that the appropriate test in such a
circumstance was the one already in use by courts in this district, and that, accordingly, in order to
be successful in moving a court to strike affirmative defenses, a plaintiff "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 the inclusion
of the defense." Whitserve, LLC v. GoDaddy.com, Inc., 2011 WL 5825712 at *2 (citations omitted);
see also Aros v. United Rentals, Inc., 2011 WL 5238829 at *1 (citations omitted). (By comparison,
under Bell Atlantic Corp v. Twombly and Ashcroft v. Iqbal, the court, in considering a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6), must determine whether a plaintiff has stated a legally
cognizable claim by making allegations which, if true, would entitle that plaintiff to relief. See Bell
Atlantic Corp. v. Twombly, 550 U.S. at 557, 570; Ashcroft v. Iqbal, 556 U.S. at 678.)
This Court is persuaded by the logic articulated by Judge Hall in the two aforementioned
2011 decisions. As Judge Hall there noted, it is Fed. R. Civ. P. 8(c)(1) which governs the pleading
of affirmative defenses rather than Fed. R. Civ. P. 8(a)(2), which requires that a pleading show that
a pleader is entitled to relief. See, e.g., Aros v. United Rentals, Inc., 2011 WL 5238829 at *3; see
also Fed. R. Civ. P. 8(c)(2) and Fed. R. Civ. P. 8(c)(1). In contrast to the language contained in Rule
8(c)(2), the language in Rule 8(c)(1) makes no mention of any requirement to show or demonstrate
relief in order to make an affirmative defense; rather, its plain text merely dictates that, "[i]n
responding to a pleading, a party must affirmatively state any avoidance or affirmative defense."
Fed. R. Civ. P. 8(c)(1) (emphasis added).
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Defendant has indeed clearly stated all six affirmative defenses it wishes to raise in its
Answer and Affirmative Defenses to Plaintiff's Complaint. See [Doc. 27] at 6. Therefore, under the
law of this district, as discussed supra, in order to successfully move this Court to strike such
affirmative defenses, Plaintiff must demonstrate 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 the inclusion of the defense. The Court finds
that for each of the six affirmative defenses which Plaintiff has moved to strike – i.e., affirmative
defenses numbers 1, 2, 3, 5, 6, and 7 – there are either questions of law or fact that might allow the
defense to succeed,2 and moreover the Court does not see how Plaintiff would be prejudiced by the
inclusion of any of these six contested affirmative defenses.3

2

NB, "[i]t is well settled ... 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." Aros v. United Rentals, Inc., 2011 WL 5238829 at *4 (citation and internal quotation
marks omitted).
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The Court does, note, however, that Defendant's sixth affirmative defense, in which
"Defendant reserves the right to rely upon other affirmative defenses as may be supported by
facts to be determined through discovery," [Doc. 27] at 6, appears to be somewhat futile as a
practical matter. As other federal courts around the country have held, "reservation of a right to
bring other defenses serves no function as is[,] and any addition of defenses is properly achieved
by the terms of the Rules...." U.S. v. Martell, 887 F.Supp. 1183, 1193 (N.D. Ind. 1995) (quoting
Kelley v. Thomas Solvent Co., 714 F.Supp. 1439, 1452 (W.D. Mich. 1989) (internal quotation
marks omitted)); see also, e.g., 61A Am. Jur. 2d Pleading § 319 (2013) ("An affirmative defense
asserting the right to bring other affirmative defenses does not preserve any affirmative defenses
the pleader may later wish to add."). Given that this sixth affirmative defense technically falls
within the broad standards and passes the applicable test discussed supra; the Court will not
strike it. Nonetheless, if Defendant seeks to add any additional affirmative defenses in this
matter and is so advised, Defendant must seek to amend its Answer and Affirmative Defenses, or
risk waiver of any such affirmative defenses.
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III.

CONCLUSION
Plaintiff's Motion to Strike [Doc. 27] is accordingly DENIED with in its entirety.
The foregoing is SO ORDERED.

Dated: New Haven, Connecticut
October 4, 2013

/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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