Prewitt v. Gartner et al

Filing 121

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 10/26/2011.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LACEY PREWITT,
Plaintiff,
vs.
UNITED STATES, ERVIN GARTNER,
JIM BUSHMAN, ANUJ PARTKH,
AKAL SECURITY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

10 C 102

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion of Plaintiff Lacey Prewitt to
strike all affirmative defenses asserted by Defendants Ervin Gartner, Akal Security, Jim
Bushman, and Anuj Parikh, pursuant to Federal Rule of Civil Procedure 12(f). For the
reasons set forth below, the motion is granted. The Court grants the Defendants leave
to amend their answers in a manner consistent with the following discussion.
BACKGROUND
On July 21, 2010, Plaintiff Lacey Prewitt (“Prewitt”) filed an eleven count
second amended complaint against the Defendants, alleging various torts and violations
of 42 U.S.C. §1983. Defendants Jim Bushman and Anuj Parikh (collectively, the

“Federal Defendants”) asserted three affirmative defenses to Prewitt’s claims1.
Defendants Ervin Gartner and Akal Security (collectively, the “Gartner Defendants”)
asserted eleven affirmative defenses to Prewitt’s claims. Prewitt now seeks to strike all
of the Defendants’ affirmative defenses.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) permits a court to strike defenses that are
insufficient on the face of the pleadings. Heller Fin., Inc. v. Midwhey Powder Co., 883
F.2d 1286, 1294 (7th Cir. 1989). Because motions to strike can be used as delay tactics,
they are generally not a favored part of motion practice. United States v. 416.81 Acres
of Land, 514 F.2d 627, 631 (7th Cir. 1975). However, if legal implications can be
drawn from uncontroverted facts within the pleadings, such motions can be useful tools
to examine the sufficiency of asserted defenses. See id.
Affirmative defenses must comply with Federal Rule of Civil Procedure 8(a),
which requires a “short and plain statement” of the defense. Heller, 883 F.2d at 1294.
However, “[b]are bones conclusory allegations” are not permitted. Id. at 1295. An
affirmative defense that raises substantial questions of law or fact will survive a motion
to strike. 416.81 Acres, 514 F.2d at 631. Moreover, if on the face of the pleadings it

1

Prewitt’s only claim against the Federal Defendants in their individual capacity is an
alleged Section 1983 violation for false arrest.
-2-

appears that a set of facts could be proven that would establish the defense, the party
asserting the defense must be provided an opportunity to prove the allegations. Id.
With these principles in mind, we turn to Prewitt’s instant motion.
DISCUSSION
I.

Gartner Defendants
Prewitt moves to strike the eleven affirmative defenses asserted by the Gartner

Defendants. Because the Gartner Defendants do not contest Prewitt’s motion to strike
their first, third, fifth, sixth, or eleventh defenses, the Court grants Prewitt’s motion with
respect to these defenses.
Additionally, because the Gartner Defendants concede that their second, seventh,
and eighth defenses are insufficiently pled, the Court grants Prewitt’s motion to strike
these defenses. However, the Gartner Defendants maintain that they reserve the right
to reassert these defenses as new information is gathered through discovery. Generally,
a party waives any affirmative defense not raised in its first responsive pleading. Castro
v. Chi. Hous. Auth., 360 F.3d 721, 735 (7th Cir. 2004). However, when justice so
requires, a court has the discretion to allow a defendant to amend its answer to assert
an affirmative defense not previously raised. Fed. R. Civ. P. 15(a)(2); Venters v. City
of Delphi, 123 F.3d 956, 968 (7th Cir. 1997). Therefore, any future requests by the

-3-

Gartner Defendants to amend their answer to include these additional defenses will be
evaluated by the Court under Rule 15 at the time such requests are made.
Finally, the Gartner Defendants’ do not challenge Prewitt’s motion to strike their
fourth, ninth, and tenth affirmative defenses, but instead seek leave to amend these
defenses. A court should freely grant leave to amend the pleadings in the interests of
justice. Fed. R. Civ. P. 15(a)(2). Though Prewitt has not challenged the sufficiency of
these proposed amendments, the Court will nevertheless examine each of them in turn.
The Gartner Defendants’ proposed amended fourth defense states that the Gartner
Defendants “acted in good faith in accordance with the law at all relevant times, and
therefore Plaintiff is not entitled to punitive damages.” A court may strike an affirmative
defense that “merely raises matters already at issue under a denial.” Bobbitt v. Victorian
House, Inc., 532 F. Supp. 734, 736 (N.D. Ill. Feb. 16, 1982). In their answer, the Gartner
Defendants denied Prewitt’s claim for punitive damages, and they have further deny any
allegations suggesting that they acted unlawfully or in bad faith. The proposed fourth
amended defense is merely a resuscitation of these denials. Therefore, the Court strikes
the Gartner Defendants’ fourth affirmative defense and denies them leave to amend.
The Gartner Defendants’ proposed amended ninth defense states that Prewitt’s
claims “brought under Section 1983 should be dismissed because neither Gartner nor
Akal were state actors or acting under color of state law at the time of the acts in

-4-

question.” This defense is also redundant. In their answer, the Gartner Defendants have
denied Prewitt’s allegations that “Gartner was an actual, apparent, or implied agent
and/or employee of the United States Government. . . .” The proposed amended ninth
defense is simply a restatement of this denial. Moreover, this proposed affirmative
defense does not raise new matter that could defeat Prewitt’s claims. To succeed on her
Section 1983 claims, Prewitt bears the burden of establishing that the Gartner
Defendants were acting under color of state law. See Reynolds v. Jamison, 488 F.3d
756, 764 (7th Cir. 2007). A challenge to an essential element of a plaintiff’s claim is not
a proper affirmative defense. See S.E.C. v. Brincat, No. 01-C-2670, 2001 WL 1662099
at *1 (N.D. Ill. Dec. 6, 2011). The Court therefore strikes the Gartner Defendants’ ninth
affirmative defense and denies them leave to amend.
The Gartner Defendants’ proposed amended tenth affirmative defense asserts, in
the alternative, that Gartner is entitled to qualified immunity. A defendant in a Section
1983 claim is entitled to qualified immunity if his conduct did not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known. Alvarado v. Litscher, 267 F.3d 648, 652 (7th Cir. 2001) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). A motion to strike under Rule 12(f) “is not a
good fit for resolving issues like qualified immunity which often turn on facts yet to be
developed.” Atkins v. Pickard, 298 Fed.Appx. 512, 513 (7th Cir. 2008). Therefore, this

-5-

defense, as amended, is sufficiently pled, and the Court grants the Gartner Defendants
leave to amend their answer to include this defense.
II.

Federal Defendants
A.

Timeliness of Prewitt’s Motion

The Federal Defendants first challenge Prewitt’s motion as untimely. Federal
Rule of Civil Procedure 12(f) allows a district court to strike an insufficient pleading
upon a “motion made by a party . . . within 21 days after being served with the
pleading.” Fed. R. Civ. P. 12(f)(2). However, Rule 12(f) also allows a court to strike
an insufficient pleading on its own initiative. Fed. R. Civ. P. 12(f)(1). Thus, a court may
“consider a motion to strike at any point in a case,” even if the court’s attention was
drawn to the matter by a party’s untimely motion. Williams v. Jader Fuel Co., 944 F.2d
1388, 1399 (7th Cir.1991).
Nearly six months have passed between the filing of the Federal Defendants’
answer and the instant motion. However, due to the volume and complexity of the
litigation to date, the Court chooses to evaluate the sufficiency of the Federal
Defendants’ defenses.
B.

The Federal Defendants’ First and Second Defenses

The Federal Defendants’ first defense states that Prewitt’s complaint “fails to state
a claim on which relief may be granted.” Their second defense states that the defendants

-6-

are “entitled to qualified immunity and/or absolute immunity from plaintiff’s claims.”
The Federal Defendants have previously raised both of these arguments via a motion to
dismiss for failure to state a claim and a motion for summary judgment based on
qualified immunity, each of which was denied by this Court.
Both defenses are bare legal conclusions that are completely devoid of any factual
support.

The Federal Defendants nevertheless urge this Court to consider their

previously filed motion to dismiss and motion for summary judgment as providing both
factual and legal support for these defenses. However, the sufficiency of an affirmative
defense must be apparent from the face of the pleadings. 416.81 Acres, 514 F.2d at 631.
As discussed above, the pleadings do not provide any factual support for the Federal
Defendants’ first and second defenses.
Rather than seek leave to amend their answer to incorporate factual support for
their asserted defenses, the Federal Defendants have asked the Court to “incorporate the
motions and memoranda that set forth the detailed basis for the defenses.” Such motions
and memoranda encompass seven documents totaling forty-six pages. The Court
respectfully declines to sift through these documents to deduce the appropriate facts in
support of the Federal Defendants’ defenses. Therefore, the Court grants Prewitt’s
motion to strike the Federal Defendants’ first and second defenses. However, the Court

-7-

grants the Federal Defendants leave to amend their answer to state these defenses in a
form that complies with the requirements of Rule 8.
C.

The Federal Defendants’ Third Defense

The Federal Defendants’ third purported defense sets forth their answer to the
complaint and is not a defense at all. Therefore, this Court grants Prewitt’s motion to
strike it as an affirmative defense, though the answer contained therein shall remain
unaffected.
CONCLUSION
For the foregoing reasons, Prewitt’s motion to strike all of the Defendants’
affirmative defenses is granted. The Court grants the Defendants leave to amend their
answers to incorporate amended affirmative defenses in a manner consistent with the
foregoing discussion.

Charles P. Kocoras
United States District Judge
Dated:

October 26, 2011

-8-