Carmody v. Board of Trustees of the University of Illinois et al

Filing 33

ORDER denying 29 Plaintiff's Motion to Strike Affirmative Defenses. See Written Order. Entered by Magistrate Judge Jonathan E. Hawley on 8/20/2014. (KZ, ilcd)

E-FILED

Wednesday, 20 August, 2014 04:02:06 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
KEVIN RICHARD CARMODY
Plaintiff,
v.

No. 2:12-cv-02249-CSB-JEH

BOARD OF TRUSTEES OF
THE UNIVERSITY OF ILLINOIS,
et al.
Defendants.
ORDER
Now before the Court is the Plaintiff’s Motion to Strike Affirmative
Defenses (Doc. 29). The Motion is fully briefed. For the reasons stated herein,
the Motion is DENIED.
I
The Plaintiff, Kevin Richard Carmody (Carmody), filed his Complaint
(Doc. 1) on September 24, 2012 alleging he was terminated from his employment
with the University of Illinois without due process of law and that retaliatory
action was taken against him in violation of the Illinois Whistle Blower
Protection Act, 5 ILCS 430/15-10. The Defendants’ Motion to Dismiss (Doc. 7)
Carmody’s entire Complaint was granted on May 15, 2013. However, on March
28, 2014, the Seventh Circuit Court of Appeals reversed the judgment dismissing
Carmody’s due process claim and remanded it for further proceedings limited to
whether Carmody was denied a constitutionally adequate pre-termination
hearing. Carmody v Board of Trustees of University of Illinois, 747 F3d 470, 481 (7th
Cir 2014). The Seventh Circuit affirmed the dismissal of Carmody’s claim under
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5 ILCS 430/15-10. Id. On July 21, 2014, the Defendants filed their Answer and
Affirmative Defense (Doc. 28). In their Answer, the Defendants assert as an
affirmative defense that they are entitled to qualified immunity.
II
In his Motion to Strike Affirmative Defenses, the Plaintiff argues that the
Defendants’ purported affirmative defenses are not within the matters delineated
and articulated in Federal Rule of Civil Procedure 8(c). He further argues that
Paragraphs 1 and 2 of the Defendants’ Affirmative Defenses are essentially
redundant articulations of their denials of the facts stated by Carmody in his
Complaint.
Rule 8(c) provides in relevant part that, “In responding to a pleading, a
party must affirmatively state any avoidance or affirmative defense, including [18
specifically identified affirmative defenses].” FRCP 8(c) (emphasis added). Rule
8(c) does not provide that the only possible affirmative defenses are those that
are specifically enumerated, as the rule merely “identifies a nonexhaustive list of
affirmative defenses that must be pleaded in a response.” Jones v Bock, 549 US
199, 212 (2007). Thus, Carmody’s qualified immunity affirmative defense does
not fail due to the fact that it is not one specifically identified in Rule 8(c).
As for the Plaintiff’s next argument, he says that the Defendants cannot
raise the affirmative defense of qualified immunity because the Seventh Circuit
and the Defendants’ own writings attached as Exhibits to the Complaint
articulate that the Defendants knew the Plaintiff clearly had to be given a pretermination opportunity to respond to the charges. An analysis of the qualified
immunity defense involves two questions: 1) whether, taking the facts in the
light most favorable to the plaintiff, the official violated a constitutional right;
and 2) whether the right was clearly established in light of the specific context of
the case. Sullivan v Ramirez, 360 F3d 692, 697 (7th Cir 2004). Given the twofold
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inquiry, it is too early in this case to make the determination that qualified
immunity does not apply so that the affirmative defense should be stricken. The
Plaintiff’s argument for striking the qualified immunity defense addresses the
first inquiry, but development of the facts (which has not yet occurred here) will
have an effect upon the second inquiry.

Therefore, it does not appear to a

certainty that the Plaintiff would succeed despite any state of the facts which
could be proved or inferable in support of the Defendants’ qualified immunity
defense.

See Williams v Jader Fuel Co, 944 F2d 1388, 1400 (7th Cir 1991)

(explaining that “Motions to strike are not favored and will not be granted unless
it appears to a certainty that plaintiffs would succeed despite any state of the
facts which could be proved in support of the defense, and are inferable from the
pleadings”) (quotation marks and citations omitted).
III
For the reasons set forth above, the Plaintiff’s Motion to Strike Affirmative
Defenses (Doc. 29) is DENIED.
Entered on August 20, 2014
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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