SMITH v. WAL-MART STORES INC
Filing
40
ORDER: 33 Motion to Strike 32 Answer to Amended Complaint by Plaintiff is DENIED. Signed by MAGISTRATE JUDGE GARY R JONES on 6/25/2012. (jws)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
BRANDON RICARDO SMITH,
Plaintiff,
v.
CASE NO. 1:11-cv-226-MP-GRJ
WAL-MART STORES, INC.,
Defendant.
_____________________________/
ORDER
Pending before the Court is Plaintiff’s Motion to Strike Wal-Mart’s Second
Affirmative Defenses. (Doc. 33.) Defendant has filed a response (Doc. 34) and,
therefore, the matter is ripe for review. For the reasons discussed below, Plaintiff’s
motion is due to be denied.
I. BACKGROUND
Plaintiff, Brandon Smith, worked for Defendant, Wal-Mart Stores, Inc., (“WalMart”) from April 27, 2009 to March 27, 2012.1 Plaintiff, proceeding pro se, purports to
bring claims against Wal-Mart for discrimination based upon Plaintiff’s disability and for
retaliation against Plaintiff for reporting that discrimination. Plaintiff, who has a speech
impediment, first filed charges against Defendant with the Equal Employment
Opportunity Commission (EEOC) on December 9, 2010 alleging that Defendant
discriminated against Plaintiff on the basis of his disability. According to Plaintiff,
1
Defendant claim s that the appropriate defendant is W al-Mart Stores East, L.P., the operating
entity of the store where Plaintiff worked.
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Defendant mocked Plaintiff’s speech impediment, called Plaintiff “retarded and special,”
and failed to accommodate Plaintiff’s request for a smaller speaking role at work. (Doc.
25). After Plaintiff filed the December 9, 2010 complaint with the EEOC, Plaintiff claims
that Defendant retaliated against Plaintiff by monitoring Plaintiff throughout the store,
denying promotions to Plaintiff, and rejecting Plaintiff’s transfer requests on numerous
occasions. Plaintiff then filed a complaint against Defendant on October 18, 2011 while
he was still employed by Defendant. (Doc. 1). Plaintiff later amended his complaint with
an additional claim that Defendant wrongfully terminated Plaintiff’s employment on
March 27, 2012 because of Plaintiff’s twenty-one absences from work, which Plaintiff
contends Defendant previously had approved so Plaintiff could attend to his legal
matters.
Defendant answered Plaintiff’s Seconded Amended Complaint and in the answer
raised twenty-three affirmative defenses. (Doc. 32). Plaintiff requests the Court to strike
Defendant’s affirmative defenses one through twenty-two on the grounds that the
defenses fail to allege sufficient facts and, therefore, are pled inadequately under Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009). In response Defendant argues that the heightened pleading requirements in
Twombly and Iqbal do not apply to affirmative defenses. (Doc. 34). Additionally,
Defendant asserts that its affirmative defenses are adequately pled and provide the
Plaintiff with adequate notice of the affirmative defenses.
II. DISCUSSION
Rule 12(f) of the Federal Rules of Civil Procedure provides that “the court may
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strike from a pleading an insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.” Fed. R. Civ. P. 12(f). When evaluating a motion to strike, the
Court must view all well pleaded facts as admitted and cannot consider matters beyond
the pleadings. Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D. Fla.
1995).
However, courts do not generally exercise their discretion to strike a pleading
unless the matter “has no possible relation to the controversy, may confuse the issues,
or otherwise prejudice a party.” Reyher, 881 F. Supp. at 576. As a result courts disfavor
motions to strike and often consider them to be “time wasters.” See Somerset Pharms.,
Inc. v. Kimball, 168 F.R.D. 69, 71 (M.D. Fla. 1996). “An affirmative defense will only be
stricken . . . if the defense is ‘insufficient as a matter of law.’” Microsoft Corp. v. Jesse's
Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002). “A defense is
insufficient as a matter of law only if: (1) on the face of the pleadings, it is patently
frivolous, or (2) it is clearly invalid as a matter of law.” Id. “To the extent that a defense
puts into issue relevant and substantial legal and factual questions, it is ‘sufficient’ and
may survive a motion to strike, particularly when there is no showing of prejudice to the
movant.” Reyher, 881 F. Supp. at 576 (citation omitted).
A.
Pleading Standard for Affirmative Defenses
Affirmative defenses are subject to the general pleading requirements of Rule 8
of the Federal Rules of Civil Procedure. Microsoft, 211 F.R.D. at 684. Pursuant to Rule
8(b)(1)(A) a party must “state in short and plain terms its defenses to each claim
asserted against it.” Fed. R. Civ. P. 8(b)(1)(A). Beyond this, however, the Eleventh
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Circuit has not addressed whether affirmative defenses are subject to the same
heightened pleading requirements as complaints under Twombly and Iqbal, or whether
affirmative defenses need only meet the traditional notice pleading standard.
District courts that have considered the issue have taken different stances on the
issue. In one line of cases district courts have concluded that this heightened pleading
standard applies to affirmative defenses because “it neither makes sense nor is it fair to
require a plaintiff to provide defendant with enough notice that there is a plausible,
factual basis for .... [its] claim under one pleading standard and then permit the
defendant under another pleading standard simply to suggest that some defense may
possibly apply in the case.” Castillo v. Roche Laboratories Inc., 10-20876-CIV, 2010
WL 3027726, *1 (S.D. Fla. Aug. 2, 2010)(citing Palmer v. Oakland Farms, Inc. No.
5:10cv00029, 2010WL 2605179 (W.D. Va. June 24, 2010)(see cases collected
therein.)
Other district courts in the Eleventh Circuit have taken the opposite view and
concluded that the heightened pleading standard in Twombly and Iqbal does not apply
to affirmative defenses. Adams v. JP Morgan Chase Bank, N.A., 3:11-cv-337-J-37MCR,
2011 WL 2938467, *2-4 (M.D. Fla. July 21, 2011)(see cases collected therein); Blanc v.
Safetouch, Inc., No. 3:07-cv-1200-J-25TEM, 2008 WL 4059786, *1 (M.D. Fla. Aug. 27,
2008); Floyd v. SunTrust Banks, Inc., No. 1:10-cv-2620-RWS, 2011 WL 2441744, *7-8
(N.D. Ga. June 13, 2011). These courts have declined to apply the heightened pleading
standard in Twombly and Iqbal to affirmative defenses based upon the rationale that
there is a difference in the language of Rule 8(a) – which deals with the pleading
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requirements for complaints – and Rules 8(b) and (c), which deal with the pleading
requirements for defenses. Adams, 2011 WL 2938467, at *3-4. Although Rule 8(a)(2)
requires a complaint to include a “short and plain statement of the claim showing that
the pleader is entitled to relief,” Rules 8(b)(1)(A) and 8(c)(1) only require that a party
states his defenses. Fed. R. Civ. P. 8 (emphasis added). The Supreme Court in
Twombly and Iqbal relied on the specific language of Rule 8(a)(2), which requires a
“showing” of entitlement to relief, when it established the plausibility requirement for
complaints. 2 Moore’s Federal Practice, 8.08[1] (Matthew Bender 3d ed.). Thus, it
follows that the plausibility requirement for affirmative defenses should not apply to
affirmative defenses because the language in the rule governing affirmative defenses
notably lacks any “showing” requirement. Id. Secondly, requiring affirmative defenses to
contain the factual specificity needed to meet a plausibility standard would be unfair to
defendants, who lack time to conduct investigations within the twenty-one day period to
respond to complaints. Id.
While there are well reasoned rationales supporting each of the divergent views
the Court need not resolve this issue because even under view that Twombly and Iqbal
should apply to pleading affirmative defenses the defendant is still only required to state
in short and plain terms its defenses to each claim asserted against it. Rule 8 “does not
obligate a defendant to set forth detailed factual allegations” but only to “give the
plaintiff ‘fair notice’ of the nature of the defense and the grounds upon which it rests.”
Bartram, LLC v. Landmark American Ins. Co., No. 1:10–cv–28, 2010 WL 4736830, *1
(N.D.Fla. Nov.16, 2010)(citing Twombly.) The factual allegations are only required to
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be enough to raise a right to relief above the speculative level.” Id. As discussed below
Defendant’s affirmative defenses more than satisfy this standard.
B.
The First, Second, Third, and Fourth Affirmative Defenses
Plaintiff contends that Defendant’s affirmative defenses, including the first four,
are insufficiently pled for lacking factual specificity and for failing to provide Plaintiff with
fair notice of the defenses. In addition to the argument that the defenses lack fair
notice, Plaintiff makes reference to exhibits and to what he refers to as “ironclad
evidence” in arguing that the defenses lack merit. (Doc. 33). However, in ruling upon a
motion to strike it is not appropriate for the Court to consider the merits of any
affirmative defense because the Court accepts all well-pled facts as true and only
evaluates the legal sufficiency of affirmative defenses. Reyher, 881 F. Supp. at 576;
see Adams, 2011 WL 2938467, at *2. Motions for summary judgment are a more
appropriate mechanism for contesting the merits of affirmative defenses. Adams, 2011
WL 2938467, at *5.
Plaintiff also argues that Defendant’s affirmative defenses merely deny facts that
Plaintiff alleged in his complaint rather than truly raise affirmative defenses. Although
Defendant’s first three affirmative defenses, which allege that: (1) Plaintiff fails to state
a claim, (2) Plaintiff is not a qualified person with a disability, and (3) Plaintiff never
sought an accommodation, may be mere denials rather than true affirmative defenses,
that is not a reason to strike the defenses because when a defendant labels a negative
assertion as an affirmative defense rather than as a specific denial, “the proper remedy
is not to strike the claim, but instead to treat the claim as a specific denial.” Bartram,
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2010 WL 4736830, at *2.
The fourth affirmative defense – that Defendant did not fire Plaintiff for his
disability – is not simply a denial but also an affirmative statement that there was
another legitimate reason for Plaintiff’s dismissal. As such, to the extent that this
defense requires Defendant to offer proof of another reasons for Plaintiff’s dismissal the
defense raises a valid legal defense to Plaintiff’s claim.
In sum, these defenses provide the Plaintiff with fair notice of the defenses
above the speculative level and therefore Plaintiff has failed to demonstrate that these
defenses should be stricken. Accordingly, Plaintiff’s motion to strike is due to be denied
with respect to the first four affirmative defenses.
C.
The Fifth Through Twenty-Second Affirmative Defenses
Plaintiff also challenges Defendant’s fifth through twenty-second affirmative
defenses, contending that each either fails on the merits, or fails to give Plaintiff
adequate notice of the defense and the factual grounds upon which it rests. As
discussed above the Court will not consider the factual merits of Defendant’s affirmative
defenses. Any challenge to the factual merits of an affirmative defense may be raised in
a motion for summary judgment if appropriate. Moreover, the Court finds that
Defendant’s fifth through twenty-second affirmative defenses provide Plaintiff with more
than fair notice of plausible defenses to the claims in the amended complaint.
For example. Defendant’s eleventh affirmative defense asserts that Defendant is
entitled to an award of attorney’s fees because Plaintiff’s claim is frivolous. Plaintiff’s
challenge to the eleventh affirmative defense focuses upon Defendant’s evidence,
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which at this stage of the case, is not appropriate. The only issue on a motion to strike
is the legal sufficiency of the affirmative defense, not its underlying merits. While a
request for attorney’s fees technically might not be considered an affirmative defense,
the Court need not strike it because pursuant to Rule 8(c)(2) the Court must treat a
mistakenly designated counterclaim as a defense as though it were correctly
designated. Therefore, rather than striking Defendant’s eleventh affirmative defense,
the Court will treat it as a claim for attorney’s fees by Defendant.
Further, with regard to Defendant’s twelfth, thirteenth, and fourteenth affirmative
defenses – which raise bars to the availability of punitive damages – the Court
concludes that these affirmative defenses are properly pled and provide Plaintiff with
sufficient notice of the nature of the defenses. In the twelfth, thirteenth, and fourteenth
affirmative defenses, Defendant asserts that Plaintiff’s claims for punitive damages are
barred because (12) any “unlawful acts were committed by individuals who were not
acting in managerial capacity,” (13) “any unlawful employment decisions were contrary
to [Wal-Mart’s] good faith efforts to comply with the anti-discrimination statutes,” and
(14) “Wal-Mart did not authorize or ratify any alleged discriminatory acts.” (Doc. 32).
Each of these affirmative defenses unambiguously identifies the defenses that
Defendant intends to advance and each raises a plausible legal defense to Plaintiff’s
request for punitive damages. To the extent Plaintiff requires greater factual detail for
these defenses, Plaintiff may acquire those facts through discovery. The Court will not
exercise its discretion to strike legally sufficient defenses that are directly related to the
controversy.
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With regard to Defendant’s sixteenth affirmative defense – which alleges the
defense of equitable estoppel – Plaintiff argues that Defendant failed to satisfy the
requirement that defendants plead equitable defenses with particularity.2 Defendant’s
sixteenth affirmative defense asserts that Plaintiff’s claims are barred by equitable
estoppel “particularly in light of Plaintiff’s actions in violation of the Florida Wiretap
Statute” an allegation that sufficiently places Plaintiff on notice of both the nature and
statutory grounds of the defense. Furthermore, Defendant’s argument that this defense
is unrelated to the controversy, confuses the issues, or otherwise prejudices Plaintiff is
belied by the fact that it was Plaintiff who submitted recordings of Defendant’s
employees as exhibits in this case.
Defendant’s seventeenth affirmative defense states that Plaintiff’s claims are
“barred by the appropriate statute of limitations” without further elaboration. (Doc. 32).
Notably, Plaintiff does not argue that the seventeenth affirmative defense is too vague
or conclusory. Rather, Plaintiff argues that the defense should be stricken because the
statute of limitations does not bar his claims, which as discussed above, is improper
because it is an argument on the merits.
Plaintiff’s motion to strike Defendant’s seventeenth affirmative defense fails for
two other reasons. First, Rule 8(c) expressly lists the statute of limitations as a valid
affirmative defense. Additionally, simply stating that Plaintiff’s claims are barred by the
2
Poly-America, Inc. v. GSE Lining Tech., Inc., No. 3:96-cv-2690-P, 1998 U.S. Dist. LEXIS 9996,
22 (N.D. Tex. June 29, 1998), the case that Plaintiff cites for support, actually concluded that affirm ative
defenses such as laches and equitable estoppel were sufficiently pled in accordance with a notice
pleading standard.
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statute of limitations is sufficient to put Plaintiff on notice of a statute of limitations
defense. Adams, 2011 WL 2938467, at *2 (citing Blanc, 2008 WL 4059786, at *1).
Therefore, the Court concludes that Defendant’s seventeenth affirmative defense is
sufficiently pled, and the Court will not strike the defense in the absence of prejudice to
Plaintiff.
Lastly, the Court will not strike Defendant’s remaining affirmative defenses on the
grounds that the defenses are unrelated to the controversy, confuse the issues, or
prejudice Plaintiff. Plaintiff can challenge Defendant’s affirmative defenses through a
motion for summary judgment after there has been an opportunity for discovery.
However, at this stage of the case Defendant’s affirmative defenses are sufficient to
provide Plaintiff with fair notice of Defendant’s legally plausible defenses. Therefore, for
these reasons the Plaintiff’s motion to strike Defendant’s affirmative defenses is due to
be denied.3
III. CONCLUSION
Accordingly, upon due consideration, it is ORDERED:
1.
Plaintiff’s Motion to Strike Wal-Mart’s Second Affirmative Defenses (Doc.
33) is DENIED.
DONE AND ORDERED in Gainesville, Florida this 25th day of June 2012.
s/ Gary R. Jones
GARY R. JONES
United States Magistrate Judge
3
Defendant’s request for attorney’s fees is due to be denied because Defendant fails to cite to
any legal basis for an award of attorney’s fees. Further, to the extent that Defendant relies upon the
Court’s inherent authority to award attorney’s fees the request is due to be denied because the Court does
not conclude that Plaintiff’s m otion was frivolous or filed in bad faith.
Case No: 1:11-cv-226-MP-GRJ
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