Jou v. Adalian et al
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES, ECF NO. 176 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 8/23/2017. (afc)CERTIFICATE OF SERV ICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EMERSON M.F. JOU, M.D.,
Civ. No. 15-00155 JMS-KJM
ORDER DENYING PLAINTIFF’S
MOTION FOR JUDGMENT ON THE
PLEADINGS AS TO DEFENDANT’S
ANSWER AND AFFIRMATIVE
DEFENSES, ECF NO. 176
GREGORY M. ADALIAN,
ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE
PLEADINGS AS TO DEFENDANT’S ANSWER AND AFFIRMATIVE
DEFENSES, ECF NO. 176
Plaintiff Emerson M.F. Jou (“Plaintiff”) moves for Judgment on the
Pleadings (the “Motion”) as to Defendant Gregory M. Adalian’s (“Defendant”)
affirmative defenses set forth in his October 7, 2016 Answer to Plaintiff’s Second
Amended Complaint (“SAC”). ECF No. 176. For the reasons set forth below, the
Motion is DENIED as untimely.
This case, and its predecessor, has a long and somewhat tortured
history. See, e.g., Jou v. Adalian, 2015 WL 477268 (D. Haw. Feb. 5, 2015) and
Jou v. Adalian, 2016 WL 4582042 (D. Haw. Sept. 1, 2016). This Motion,
however, is fairly straightforward and requires only limited background.
Plaintiff filed his original complaint in this case on April 29, 2015.
ECF No. 1. Defendant answered on October 23, 2015, setting forth 20 affirmative
defenses. ECF No. 20. A First Amended Complaint (“FAC”) was filed on
November 13, 2015, ECF No. 21, and on November 23, 2015 the answer was filed,
this time with 22 affirmative defenses. ECF No. 24.
On September 1, 2016, the court entered an Order dismissing the
FAC, but granting Plaintiff leave to amend as to a single claim. ECF No. 67.
Plaintiff’s SAC was then filed on September 22, 2016, ECF No. 68, and the
Answer to the SAC was filed on October 7, 2016. ECF No. 72. This Answer also
contains 22 affirmative defenses.
On July 24, 2017, over nine months after Defendant filed his Answer
to the SAC, Plaintiff filed this Federal Rule of Civil Procedure (“Rule”) 12(c)
Motion seeking judgment on the majority of the affirmative defenses. Plaintiff
makes two arguments: 1) the Twombly/Iqbal plausibility standard applies to
affirmative defenses; and 2) regardless of the standard that applies, Defendant’s
affirmative defenses are conclusory or boilerplate, and thus judgment on the
affirmative defenses must be entered in Plaintiff’s favor. Defendant filed an
opposition on August 16, 2017. ECF No. 192. The court finds this matter suitable
for disposition without a hearing pursuant to Local Rule 7.2(d).
Ultimately, the court does not address the merits of Plaintiff’s claim,
finding that the Motion should be construed as one brought under Federal Rule of
Civil Procedure 12(f), and is untimely. In reaching this decision, the court
addresses two issues. First, whether the Twombly/Iqbal standard applies to
affirmative defenses. And second, whether the Motion is timely. And in
discussing the second issue, the court examines the relationship between Rule
12(f)1 (which places a time limit on the filing of a motion to strike an “affirmative
defense”) and Rule 12(h)(2)(B)2 (which authorizes the filing of a Rule 12(c)
motion for failure “to state a legal defense to a claim”).
Rule 12(f) states:
The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The
court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after being
served with the pleading.
Rule 12(h)(2) states:
Failure to state a claim upon which relief can be granted, to join a
person required by Rule 19(b), or to state a legal defense to a claim
may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
Twombly/Iqbal Do Not Apply to Affirmative Defenses
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), require that a complaint contain sufficient factual
information to state a plausible claim to relief. Since Twombly and Iqbal, district
courts in the Ninth Circuit have been divided on whether this standard applies to
affirmative defenses. Compare, e.g., Perez v. Gordon & Wong Law Grp., P.C.,
2012 WL 1029425, at *6-7 (N.D. Cal. Mar. 26, 2012) (finding that the heightened
standard applies to affirmative defenses); and Dion v. Fulton Friedman & Gullace
LLP, 2012 WL 160221, at *2-3 (N.D. Cal. Jan. 17, 2012) (explaining that a
majority of district courts have extended Twombly and Iqbal to affirmative defense
pleading);3 with Exp. Dev. Canada v. ESE Elecs. Inc., 2017 WL 1838581, at *3-4
(C.D. Cal. May 4, 2017) (declining to extend the Twombly and Iqbal pleading
standard to affirmative defenses); and Kohler v. Islands Rests., LP, 280 F.R.D.
560, 566 (S.D. Cal. 2012) (same).
Several years ago this court refused to extend the Twombly/Iqbal
plausibility standard to affirmative defenses. See Cape Flattery Ltd. v. Titan Mar.
LLC, 2012 WL 3113168 (D. Haw. July 31, 2012). Cape Flattery explained:
When a court applies the Twombly/Iqbal standard to affirmative defenses, “the simple
listing of a series of conclusory statements asserting the existence of an affirmative defense
without stating a reason why that affirmative defense might exist is not sufficient.” See Miller v.
Ghirardelli Chocolate Co., 2013 WL 3153388, at *3 (N.D. Cal. June 19, 2013) (internal
quotation marks omitted).
First, Twombly and Iqbal address claims for relief under Rule
8(a)(2), which requires that a claim for relief provide “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” (emphasis added). In comparison, “[s]tating
an affirmative defense under Rule 8(c) . . . does not require the
pleader to ‘show’ entitlement to its defense. Rather, Rule 8(c)
merely requires that a party affirmatively state any avoidance or
Second, the Ninth Circuit has described the pleading standard
for affirmative defenses as a “fair notice” standard, and has
continued to apply this standard since Twombly and Iqbal.
Third, a plaintiff has much more time to investigate and draft a
complaint as compared to a defendant who must answer it
(usually within twenty-one days, see Fed. R. Civ. P.
12(a)(1)(A)(i)). Indeed, unlike a complaint, affirmative
defenses require no response. As a result, “[w]hatever one
thinks of Iqbal and Twombly, the ‘plausibility’ requirement that
they impose is more fairly imposed on plaintiffs who have
years to investigate than on defendants who have 21 days.”
Id. at *10 (omission in original) (internal footnote and citations omitted).
And more recently, the Ninth Circuit reiterated that no heightened
pleading standard applies to affirmative defenses, stating that “the ‘fair notice’
required by the pleading standards only requires describing the defense in ‘general
terms.’” Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (citing
5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274
Based on the court’s rationale as expressed in Cape Flattery, and
given the Ninth Circuit’s statement in Kohler, the court finds that an affirmative
defense need not meet the Twombly/Iqbal plausibility standard.
The Motion is Construed as Filed Under Rule 12(f)
The court next addresses whether the Motion is timely. If filed as a
motion to strike an “insufficient defense” under Rule 12(f), then it is barred by
Rule 12(f)(2), which requires that a Rule 12(f) motion be filed “within 21 days
after being served with the pleading.” But if filed as a motion for failure “to state a
legal defense to a claim” under Rule 12(h)(2)(B), then it is timely. 4
As a starting point, most courts appear to assume that any motion to
strike an affirmative defense must be brought under Rule 12(f). See,e.g., Bank of
N.Y. Mellon v. Walch, 2017 WL 1734031, at *6 (D.N.J. May 3, 2017) (finding
motion to strike affirmative defenses untimely under Rule 12(f)); First Nat’l City
Bank v. Burton M. Saks Constr. Corp., 70 F.R.D. 417, 419 (D.V.I. 1976) (same);
Campmed Cas. & Indem. Co., Inc. v. Specialists on Call, Inc., 2017 WL 373463, at
*3 (E.D. Tex. Jan. 26, 2017) (“A Rule 12(b)(6) motion is not proper to dismiss a
defendant’s affirmative defense. The proper procedure requires a motion to strike
pursuant to Rule 12(f).”); Pylant v. Cuba, 2015 WL 12753669, at *4 (N.D. Tex.
A Rule 12(h)(2)(B) motion may be raised under Rule 12(c), which permits a motion to
be filed after the pleadings are closed, but “early enough not to delay trial.” If construed as a
Rule 12(c) motion, the Motion would be timely.
Mar. 6, 2015) (“Rule 12(f), rather than Rule 12(b)(6), provides the proper vehicle
to address an insufficient affirmative defense.”); Voyton v. Hayman, 2014 WL
12569367, at *1 (C.D. Cal. July 11, 2014) (construing a Rule 12(b)(6) motion to
strike an insufficient defense as brought under Rule 12(f)); Inlet Condo. Ass’n Inc.
v. Childress Duffy, Ltd., 2013 WL 11320208, at *1 (S.D. Fla. May 21, 2013)
(“[T]he proper vehicle for Inlet’s challenges to Childress’ affirmative defenses is a
motion to strike pursuant to Fed. R. Civ. P. 12(f) rather than a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b).”); Ryan v. Law Offices Howard Lee Schiff, P.C.,
2011 WL 1060287, at *1 n.1 (D. Conn. Mar. 23, 2011) (“Plaintiff’s motion refers
to both Rule 12(f) and 12(b)(6), but Rule 12(f) is the proper vehicle to move to
strike a defendant’s affirmative defense.”).
But these cases largely ignore Rule 12’s second method of
challenging an affirmative defense -- Rule 12(h)(2)(B). As stated, this rule permits
the filing of a Rule 12(c) motion for failure to state a legal defense to a claim. So,
the question becomes how to reconcile Rule 12(f) and Rule 12(h)(2)(B). More
specifically, what is the difference between challenging an “insufficient defense”
under Rule 12(f) and challenging the failure to state a “legal defense” to a claim
under Rule 12(h)(2)(B)? In answering this question, the court follows some
general rules of statutory construction. See Briseno v. ConAgra Foods, Inc., 844
F.3d 1121, 1125 (9th Cir. 2017) (applying traditional tools of statutory
construction to interpret the Federal Rules of Civil Procedure). The court starts, of
course, with plain meaning. Id. And an “interpretation that gives effect to every
clause is generally preferable to one that does not.” Republic of Ecuador v.
Mackay, 742 F.3d 860, 864 (9th Cir. 2014). As a corollary rule, “‘no provision
should be construed to be entirely redundant.’” United States v. $133,420.00 in
U.S. Currency, 672 F.3d 629, 643 (9th Cir. 2012) (quoting Spencer Enters., Inc. v.
United States, 345 F.3d 683, 691 (9th Cir. 2003)). Thus, “[a] statute should be
construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant . . . .” Hibbs v. Winn, 542 U.S. 88,
101 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46.06, at
181-86) (rev. 6th ed. 2000)).
As an initial matter, the court rejects the view that Rule 12(h)(2)(B)
“simply allows a [Rule 12(f)] motion to be filed beyond the deadline set forth in
Rule 12(f).” Doe v. Freeburg Comm. Consol. Sch. Dist. No. 70, 2012 WL
4006333, at *1 (S.D. Ill. Sept. 12, 2012). This interpretation renders meaningless
Rule 12(f)(2)’s requirement that a Rule 12(f) motion be filed within twenty-one
days of service of the complaint. And, it fails to recognize the difference between
an “insufficient” and a “legal” defense.
The court concludes that the difference between an “insufficient
defense” and the failure to “state a legal defense to a claim” is based on the type of
challenge being made. A claim of an “insufficient defense” covers a broader array
of possible challenges than one claiming failure to state a “legal defense.” In fact,
while every failure to state a “legal defense” would also likely be an “insufficient
defense,” the reverse isn’t true -- some defenses can be insufficient but still state a
legal defense. This follows from the definition of “legal defense” as “a complete
and adequate defense in a court of law.” See Black’s Law Dictionary (10th ed.
2014). If a defense is not a complete and adequate one, it is not a legal defense.
So, for example, if an affirmative defense of laches is not available as a matter of
law in a particular case, then the plaintiff could move under Rule 12(h)(2)(B) (via
Rule 12(c)) for judgment on the pleadings as to that defense. 5 But if a Plaintiff
simply claims that an affirmative defense as pled is too conclusory or boilerplate,
then that claim does not challenge legal adequacy; 6 instead, it asserts that the
defense is insufficient as pled. See Cohen v. SunTrust Mtg., 2017 WL 1173581, at
*1 (D.S.C. Mar. 30, 2017) (finding that an allegation that an affirmative defense
fails to allege sufficient supporting facts falls under Rule 12(f), not Rule
12(h)(2)(B)). This reading of Rule 12(f) and 12(h)(2)(B) gives meaning to both
provisions and avoids finding any provision superfluous.
And if timely, that Plaintiff could likely move under Rule 12(f) as well. After all, the
defense would also be “insufficient.”
The court need not determine whether, if Twombly/Iqbal applies to affirmative defenses,
a challenge could be made that the lack of plausibility raises to the level of a “legal” defense.
Here, Plaintiff simply claims that the majority of affirmative defenses
are boilerplate and conclusory -- i.e., they are insufficient as pled. The court thus
construes the Motion as being brought pursuant to Rule 12(f). And because it was
filed many months late, it is untimely.
The distinction the court draws between an insufficient defense and a
failure to state a legal defense also make practical sense. Defendant filed his
Answer to the SAC on October 7, 2016. ECF No. 72. Although the alleged
“boilerplate” deficiencies of these affirmative defenses were clearly known to
Plaintiff by that date, he waited until July 24, 2017 to file the Motion, over nine
months later. Further, he claims quite incredibly that the court should enter
judgment as to the affirmative defenses without leave to amend. And if Plaintiff
prevailed under his theory, he could wait many months to file his Rule 12(c)
motion, and then deprive Defendant of relying on the vast majority of his
affirmative defenses at trial. Such a result is in direct conflict with Rule 1’s
requirement that the rules “should be construed, administered, and employed by
the court and the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding.”
Plaintiff’s Motion is construed as brought under Federal Rule of Civil
Procedure 12(f), and is DENIED as untimely under Federal Rule of Civil
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 23, 2017.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Jou v. Adalian, Civ. No. 15-00155 JMS-KJM, Order Denying Plaintiff’s Motion for Judgment
on the Pleadings as to Defendant’s Answer and Affirmative Defenses, ECF NO. 176
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