Falash v. Inspire Academics, Inc. et al

Filing 43

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED that Plaintiffs Motion to Strike Defendants 28 Affirmative Defenses and Improper Responses to the Complaint (Docket No. 29 ) is GRANTED, in part, and DENIED, in part, as follows: Defendants Sixth and Fourteenth Affirmative Defenses are stricken. In these limited respects only, Plaintiffs Motion to Strike is granted. All of Defendants other Affirmative Defenses remain intact; in these respects,Plaintiffs Motion to Strike is denied. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

THOMAS W. FALASH, an individual,
Plaintiff,
vs.
INSPIRE ACADEMICS, INC., an Idaho non-profit
corporation; CONNECTIONS EDUCATION, LLC,
a Delaware corporation; CONNECTIONS
ACADEMY OF IDAHO, LLC, an Idaho
corporation; JILL HAMILTON, individually and as
Director and President, Inspire Academics, Inc.;
DIANA PLANE, individually and as Director,
Inspire Academics, Inc.; MARCIA ROWE,
individually and as Director, Inspire Academics,
Inc.; GERALD CHOUINARD, individually and as
Principal, Inspire Academics, Inc.; TONYA
WESLEY, individually and as Senior Manager of
Employee Relations, Connections Education, LLC;

Case No.: 1:14-cv-00223-REB
MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S MOTION
TO STRIKE DEFENDANTS’
AFFIRMATIVE DEFENSES AND
IMPROPER RESPONSES TO THE
COMPLAINT
(Docket No. 29)

Defendants.

Now pending before the Court is Plaintiff’s Motion to Strike Defendants’ Affirmative
Defenses and Improper Responses to the Complaint (“Motion to Strike”) (Docket No. 29).
Having carefully considered the record and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order:
I. BACKGROUND
The full array of facts giving rise to the instant action do not require reciting for purposes
of resolving the at-issue Motion. Suffice it to say, Plaintiff generally alleges that he was
terminated in retaliation for his whistleblowing activities. In turn, Plaintiff brings seven claims
against Defendants: (1) violation of Constitutional due process; (2) violation of Section 504 of
MEMORANDUM DECISION AND ORDER - 1

the Rehabilitation Act of 1973; (3) discrimination in violation of Title II of the Americans with
Disabilities Act (“ADA”); (4) violation of Idaho Code § 6-2101 (Protection of Public
Employees); (5) tortious interference with contract; (6) tortious interference with prospective
economic advantage; and (7) discrimination in violation of Title I of the ADA. Through their
Answer, Defendants deny the allegations informing Plaintiff’s claims against them, while also
asserting twenty-seven “affirmative defenses.” Pursuant to FRCP 12(f), Plaintiff moves to strike
various of the Answer’s stated affirmative defenses and responses.
II. DISCUSSION
Under FRCP 12(f), “[t]he court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” “[T]he function of a 12(f) motion to
strike is to avoid the expenditure of time and money that must arise from litigating spurious
issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697
F.2d 880, 885 (9th Cir. 1983). However, motions under FRCP 12(f) are “generally regarded with
disfavor because of the limited importance of pleading in federal practice, and because they are
often used as a delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101,
1152 (C.D. Cal. 2003).
Courts have broad discretion in deciding such motions. See Fantasy, Inc. v. Fogerty, 984
F.2d 1524, 1528 (9th Cir. 1993). The motions are construed in the light most favorable to the
non-moving party, and will be denied if the challenged defenses have “‘any relation to the
subject matter of the controversy, could be held to in any manner defeat the plaintiff’s claim, or
if it fairly presents any question of fact or law.’” United States v. 45.43 Acres of Land Situate in
Ada County, Idaho, 2009 WL 1605127, *2 (D. Idaho 2009) (quoting United States v. Articles of
Food . . . Clover Club Potato Chips, 67 F.R.D. 419, 421 (D. Idaho 1975)). Still, “[a]n
MEMORANDUM DECISION AND ORDER - 2

affirmative defense may be stricken as insufficient if ‘it is not recognized as a defense to the
cause of action.’” 45.43 Acres, 2009 WL 1605127 at *2 (quoting Tonka Corp. v. Rose Art Indus.,
836 F. Supp. 200, 217 (D. N.J. 1993)).
A.

Overall Sufficiency of Defendants’ Affirmative Defenses
To begin, Plaintiff claims that “Defendants merely provide labels for their affirmative

defenses” and, “[w]ithout the most basic factual allegations to rely on, [he] has no means of
assessing the affirmative defenses asserted against him and is instead left to speculate on
Defendants’ intended defenses.” Mem. in Supp. of Mot. to Strike, p. 10 (Docket No. 29, Att. 1).
As a result, Plaintiff argues that Defendants’ affirmative defenses “should be stricken with
instruction that Defendants re-plead only those defenses for which they can assert a sufficient
factual basis.” Id. at p. 11.
In making his argument, Plaintiff relies, in part, upon the heightened pleading standards
found in Iqbal and Twombly. See id. at pp. 7-11. This issue was raised in a case recently
considered by Chief U.S. Magistrate Judge Candy W. Dale, to which Judge Dale said:
Although district courts are divided on whether Twombly and Iqbal apply to
affirmative defenses, [Plaintiff’s] argument based on these cases is unpersuasive.
Notably, the Ninth Circuit has continued to apply the fair notice standard to
affirmative defenses and Iqbal and Twombly. In addition, the Court is mindful that
plaintiffs have significantly more time to formulate a complaint than defendants have
to draft an answer. This asymmetry warrants “some latitude,” considering that
defendants risk waiving affirmative defenses not pled.
Moreover, neither Twombly nor Iqbal address the pleading standard for affirmative
defenses. Both cases dealt with the sufficiency of complaints and both explicitly
construed the pleading requirement contained in Rule 8(a)(2). That Rule, unlike
Rules 8(b) and (c), requires a “showing that the pleader is entitled to relief.” Indeed,
the Rule 8(a)(2) “showing” requirement was the textual foundation for the Supreme
Court’s decision raising the pleading standard for civil complaints. In contrast, Rules
8(b) and (c) merely require the responding pleader to “state” its defenses. [Plaintiff]
MEMORANDUM DECISION AND ORDER - 3

does not explain why the “showing” requirements should be read into rules from
which it is absent, and the Court declines to do so.
McBurney v. Lowe’s Home Centers, LLC, 2014 WL 2993087, *2-3 (D. Idaho. 2014) (internal
citations omitted). The undersigned is satisfied that Judge Dale’s reasoning in McBurney is
apropos to the pending dispute. Plaintiff’s Motion to Strike is denied in this respect.
B.

Defenses vs. Affirmative Defenses1
1.

“Affirmative Defenses” That Negate an Element of Plaintiff’s Proof

Plaintiff next takes aim at Defendants’ Fourth, Eighth, Ninth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Twenty-Fourth, Twenty-Sixth, and
Twenty-Seventh Affirmative Defenses, arguing that “[d]efenses that merely negate an element of
Plaintiff’s proof are not affirmative defenses because they merely controvert an element of
Plaintiff’s prima facie case.” Mem. in Supp. of Mot. to Strike, p. 12 (Docket No. 29, Att. 1). To
be clear, there is no purpose to be served for any judicial pruning here. Again, the undersigned
agrees with Judge Dale’s handling of such matters in McBurney:
The Court also declines in this case to strike Defendants’ allegedly redundant
defenses. It is true that defenses that negate an element of, or assert a defect in, a
plaintiff’s prima facie case are negative, not affirmative defenses. But, at this stage
in the litigation, striking negative defenses would do little more than tidy up the
pleadings. [Plaintiff] would still have the burden of proving his prima facie case and
Defendants would still be entitled to argue that he does not state a claim upon which
relief can be granted. Given these practical realities, the Court is loath to micromanage the pleadings merely to credit [Plaintiff’s] technical points.
McBurney, 2014 WL 2993087 at *3 (internal citations omitted). Such reasons apply equally
here. To be sure, the meat of these affirmative defenses appears to be the subject (at least in
part) of Defendants’ pending Motion for Summary Judgment (Docket No. 38). In that context,

1

Defendants “agree with Plaintiff and will amend their Answer and drop the Sixth
(pendant jurisdiction) and Fourteenth (Eleventh Amendment) Affirmative Defenses.” Opp. to
Mot. to Strike, p. 9 (Docket No. 30). Therefore, in these limited respects only, Plaintiff’s Motion
to Strike is granted.
MEMORANDUM DECISION AND ORDER - 4

both sides will have the opportunity to test these affirmative defenses and argue to this Court
whether Plaintiff can, as a matter of law, recover on his claims against Defendants. Plaintiff’s
Motion to Strike is denied in this respect.
2.

Qualified Immunity: Affirmative Defense or Not?

Plaintiff goes on to submit that, because Defendants must accept as true the allegations
stated in his First Amended Complaint, Defendants Fifth Affirmative Defense (qualified and/or
absolute immunity) “should be stricken since it cannot be asserted.” Mem. in Supp. of Mot. to
Strike, p. 14 (Docket No. 29, Att. 1). Even if this is true (this Memorandum Decision does not
take a position on the issue2), striking the defense – affirmative or not – is unnecessary in a
practical sense. Presumably, such details can be (or have thus far been) fleshed out through
discovery and, if appropriate, scrutinized more fully in any forthcoming briefing. Until then,
Plaintiff is on fair notice that such a defense may be argued at trial. Plaintiff’s Motion to Strike
is denied in this respect.
3.

Reserving the Right to Amend

Following the twenty-seven affirmative defenses alleged in Defendants’ Answer,
Defendants reserve the right to request leave from the Court to supplement their Answer and add
additional defenses as the case progresses. See Ans. to First Am. Compl., p. 19 (Docket No. 28).

2

Nonetheless, it would seem that Plaintiff’s argument on this point is overstated. See,
e.g., Hernandez v. County of Monterey, 306 F.R.D. 279, 289 (N.D. Cal. 2015) (“Moreover,
‘qualified immunity is an affirmative defense to damage liability; it does not bar actions for
declaratory or injunctive relief.’”) (quoting American Fire, Theft & Collision Managers, Inc. v.
Gillespie, 932 F.2d 816, 818 (9th Cir. 1991)); Vasquez-Brenes v. Las Vegas Metropolitan Police
Dept., 51 F. Supp. 3d 999, 1006 (D. Nev. 2014) (“Where a plaintiff has stated a valid cause of
action under 42 U.S.C. § 1983, government officials sued in their individual capacities may raise
the affirmative defense of qualified immunity.”) (citing Spoklie v. Montana, 411 F.3d 1051, 1060
(9th Cir. 2005)); Roe v. City of San Diego, 289 F.R.D. 604, 609-10 (S.D. Cal. 2013) (striking
affirmative defenses relating to qualified immunity was unwarranted in plaintiff’s § 1983 action;
those defenses put plaintiff on notice that defendants’ conduct fell under protection of qualified
immunity).
MEMORANDUM DECISION AND ORDER - 5

Plaintiff argues that “[t]he reservation of right to amend is unnecessary since [FRCP 15] already
allows for such a motion.” Mem. in Supp. of Mot. to Strike, p. 14 (Docket No. 29, Att. 1). To
the extent Plaintiff is seeking to somehow strike this paragraph from Defendants’ Answer (it is
not even asserted as either a defense or affirmative defense), the argument is rejected. There is
just no point in striking such material; it simply operates to put Plaintiff’s counsel on notice of
what Defendants’ counsel considers to be the potential defenses known at that time. While not
required to be included, such as statement is not unusual and, more importantly, not remotely
burdensome to Plaintiff toward preparing his case moving forward. At most, it reiterates FRCP
15's charge; nothing more, nothing less. Plaintiff’s Motion to Strike is denied in this respect.
4.

Failure to State a Claim

Plaintiff’s issue with Defendants’ assertion (via their First Affirmative Defense) that
Plaintiff’s [First Amended] Complaint fails to state a claim upon which relief can be granted,
likewise misses the point. It is true, as Plaintiff contends, that this defense contains “bare
allegations” and “identify no facts.” Mem. in Supp. of Mot. to Strike, p. 15 (Docket No. 29, Att.
1). However, they put Plaintiff on notice that Defendants generally believe that Plaintiff’s
claims are unsupported. Under FRCP 8(b) and 8(c), the responding party must “state” defenses
to the claims asserted against it; here, Defendants did just that by properly presenting a defense
outlined within FRCP 12(b)(6). The fact that it is a catch-all type statement does not make it
inappropriate; rather, it is consistent with a the generalized “cover-the-waterfront” statement
commonplace to a defendant’s answer regarding whether or not a complaint has stated a claim
for relief. In essence, the statement makes clear that the defendant is putting everything
contained in the complaint at issue. Nothing changes as to testing defenses during discovery or,
ultimately, in future motion practice. Until then, it simply reiterates Defendants’ position as to
Plaintiff’s claims. The fact that this defense may not be a classic affirmative defense does not
MEMORANDUM DECISION AND ORDER - 6

mean that it should be stricken, nor does its inclusion prejudice Plaintiff in his ability to
prosecute his lawsuit. Plaintiff’s Motion to Strike is denied in this respect.
5.

Redundant Affirmative Defenses

Plaintiffs believe that Defendants’ Tenth, Fifteenth, Sixteenth, Twenty-Fifth, and
Twenty-Sixth Affirmative Defenses also allege that Plaintiff has failed to state a claim and,
therefore, are not separate affirmative defenses and should be stricken. See id. at pp. 15-16. For
the reasons articulated earlier in this Memorandum Decision and Order (those dealing with
negating an element of Plaintiff’s proof and failure to state a claim), any argument that redundant
affirmative defenses should be stricken – even if true – is misplaced. Simply put, doing so is
unnecessary. Plaintiff’s Motion to Strike is denied in this respect.
C.

Affirmative Defenses Inapplicable as a Matter of Law
Plaintiff also seeks to strike Defendants’ Third Affirmative Defense (Idaho Tort Claim

Act), arguing that it is “inapplicable as a matter of law” because “[t]he federal claims preempt
any immunities arising from the state tort act.” Id. at 16. However, Plaintiff makes a claim
under Idaho law. See supra. Further, within their pending Motion for Summary Judgment,
Defendants argue that “Ms. Wesley is immune from liability under the operation of Idaho Code
§ 6-904(3).” Mem. in Supp. of MSJ, p. 17 (Docket No. 38, Att. 1). Accordingly, the
applicability of Defendants’ Third Affirmative Defense will be considered in conjunction with
any dispositive motions. Plaintiff’s Motion to Strike is denied in this respect.
D.

Equitable Defenses
Though not identifying them specifically, Plaintiff argues that Defendants “insufficiently

plead the equitable defenses.” Mem. in Supp. of Mot. to Strike, pp. 16-17 (Docket No. 29, Att.

MEMORANDUM DECISION AND ORDER - 7

1). The Court notes that, in their Eighteenth Affirmative Defense, Defendants states that, “[t]o
the extent Plaintiff’s claims sound in equity, Plaintiff’s claims are barred by the doctrine of
unclean hands.” Ans. to First Am. Compl., ¶ 137 (Docket No. 28). Without stating here that
such a defense must be plead with particularity to begin with, the undersigned will nonetheless
not strike it here. Compare H.D. Smith Wholesale Drug Co. v. Crawford, 2012 WL 2503100, *2
(C.D. Ill. 2012) (“Crawford, however, is not required to plead his defense of unclean hands with
particularity. Rule 9(b) only requires fraud and mistake to be plead with particularity, not
equitable defenses such as unclean hands.”), with Reis Robotics USA, Inc. v. Concept Indust.,
462 F. Supp. 2d 897, 907 (N.D. Ill. 2006) (providing that equitable defenses must be plead with
particularity). Such a defense may or may not apply, depending on how discovery unfolds.
Regardless, Plaintiff is on notice and can test its merit during discovery. Striking the defense at
this juncture does nothing to actually streamline the case. Plaintiff’s Motion to Strike is denied
in this respect.
E.

Plaintiff’s Objections to “Legal Conclusion” Responses Within Defendants’ Answer
In multiple instances, Defendants’ Answer states that allegations within Plaintiff’s First

Amended Complaint contain legal conclusions and, to the extent a response is required as a
result, they are denied. See, e.g., Ans. to First Am. Compl., ¶¶ 1-6, 9, 17, 19-23, 26-27, 61, 6769, 72-74, 96-97, & 110 (Docket No. 28). Plaintiff argues that FRCP 8 “contains no such
exception for responding to an allegation in a complaint” and that “[r]equiring Defendants to
admit or deny these legal conclusions would streamline this case by allowing Plaintiff to know
whether Defendants agree with the legal assertions, but disagree with some of Plaintiff’s facts, or
whether Defendants disagree as to both the factual allegations and the law.” Mem. in Supp. of

MEMORANDUM DECISION AND ORDER - 8

Mot. to Strike, p. 18 (Docket No. 29, Att. 1). Plaintiff therefore asks the Court to order
Defendants to revise/clarify these particular responses.
Here, Defendants did not simply respond to Plaintiff’s allegations by stating matter-offactly that they contain legal conclusions; instead, they responded to certain factual material the
best they could and then, as to what they considered legal conclusions, denied them. Such
responses are permitted, and the Court again agrees with Judge Dale’s discussion of the Rule
8(b) issues raised by this discrete issue, as described in McBurney:
Rule 8(b) authorizes three responses to an allegation in a complaint: (1) an
admission, (2) a denial, or (3) a statement of absence of knowledge or information
sufficient to form a belief about the truth of an allegation. Simply averring that a
plaintiff’s allegations “state a legal conclusion to which the defendant is not required
to respond” would be insufficient under this Rule. But Defendants went further and
denied the allegations to the extent necessary. This is enough to satisfy Rule 8(b).
If [Plaintiff] wishes to “pin down” Defendants on their denials, he may do so through
the discovery process, either through requests for admissions or depositions. There,
[Plaintiff’s] motion is denied with respect to Defendants’ qualified denials.
McBurney, 2014 WL 2993087 at *4 (internal citations omitted). As Defendants suggest in their
briefing, Plaintiff is advised to simply consider those portions of the First Amended Complaint
as denied. See Opp. to Mot. to Strike, p. 13 (Docket No. 30) (“The Defendants will amend their
answer to respond to the legal conclusions stated in the Plaintiff’s complaint. The Defendants
anticipate denying each of the legal conclusions set forth by the Plaintiff. Despite the Plaintiff’s
claims that this process ‘will streamline this case’ this motion appears to accomplish just the
opposite, taking up more time.”). Plaintiff’s Motion to Strike is denied in this respect.
III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike
Defendants’ Affirmative Defenses and Improper Responses to the Complaint (Docket No. 29) is
GRANTED, in part, and DENIED, in part, as follows: Defendants’ Sixth and Fourteenth
MEMORANDUM DECISION AND ORDER - 9

Affirmative Defenses are stricken. In these limited respects only, Plaintiff’s Motion to Strike is
granted. All of Defendants’ other Affirmative Defenses remain intact; in these respects,
Plaintiff’s Motion to Strike is denied.
DATED: August 6, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 10