Robles et al v. Costco Wholesale Corporation

Filing 42

WRITTEN Opinion entered by the Honorable Joan H. Lefkow on 11/2/2011: Plaintiffs' motion to strike affirmative defenses [#26] is granted in part and denied in part. Defendant has until November 17, 2011 to amend its answer. Signed by the Honorable Joan H. Lefkow on 11/2/2011:Mailed notice(mad, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Joan H. Lefkow

CASE NUMBER

11 C 1785

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

11/2/2011

Robles vs. Costco Wholesale Corp.

DOCKET ENTRY TEXT

Plaintiffs’ motion to strike affirmative defenses [#26] is granted in part and denied in part. Defendant has
until November 17, 2011 to amend its answer.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Plaintiffs, Javier Robles, Monica Kamal and Rebecca Wylie (collectively “plaintiffs”), are individuals who
depend on wheelchairs for mobility. They filed a putative class action against defendant, Costco Wholesale
Corp. (“defendant”), alleging that it failed to properly equip its optometric offices to serve persons utilizing
wheelchairs in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 1210, et seq. (“ADA”), and the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Defendant answered, asserting seven affirmative
defenses, and plaintiffs moved to strike.
An affirmative defense is one that admits the allegations in the complaint, but avoids liability, in whole or in
part by new allegations of excuse justification or other negating matters. Riemer v. Chase Bank, N.A., 247
F.R.D. 637, 639 (N.D. Ill. May 26, 2011). By their nature, affirmative defenses require defendants to bear
the burden of proof on those particular issues. Native Am. Arts, Inc. v. Waldron Corp., 253 F. Supp. 2d 1041,
1045 (N.D. Ill. 2003). Federal Rule of Civil Procedure 12(f) allows the court to strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f).
Under this rule, “district courts have considerable discretion . . . to strike claimed defenses that do not give
fair notice and merely clutter the pleadings.” Riemer, 274 F.R.D. at 639 (citations omitted). The court’s
ruling on plaintiffs’ motion is as follows:
Affirmative Defense 1 (Failure to request modification): Granted. If notice and opportunity to cure are,
as defendant argues, a prerequisite to bringing a claim under 42 U.S.C. § 12182(b)(2)(A)(ii), then plaintiffs
must prove this element as part of their prima facie case. Non-proof is not an affirmative defense. See
Riemer, 274 F.R.D. at 639 (“An attack on a plaintiff’s prima facie claim is a negative defense, rather than an
affirmative defense, which must plead matter that is not within the claimant’s prima facie case.”) (internal
quotation marks and citation omitted); see also Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d
1373, 1377 (7th Cir. 1990) (affirmative defenses do not controvert proof of the claim to which they are
11C1785 Robles vs. Costco Wholesale Corp.

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STATEMENT
addressed); Sundstrand Corp. v. Standard Kollsman Indus., Inc., 488 F.2d 807, 813 (7th Cir. 1973) (“a
defendant need plead affirmatively only those defenses upon which he bears the burden of proof”) (citations
omitted).
Affirmative Defense 2 (Modification would fundamentally alter business): Granted. Even under the preIqbal and Twombly standard, “[b]are legal conclusions are never sufficient.” See Riemer, 274 F.R.D. at 639
(citing Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1295 (7th Cir. 1989)). Defendant
must set forth a short and plain statement of the basis for the defense. Fed. R. Civ. P. 8(a).
Affirmative Defense 3 (Not responsible for policies): Granted. Both the landlord that owns a building that
houses a place of public accommodation and the tenant who owns or operates the place of public
accommodation are subject to the requirements of Title III. 28 C.F.R. § 36.201(b). “However, in general
landlords should not be given responsibility for policies a tenant applies in operating its business, if such
policies are solely those of the tenant.” Id. at App. C § 36.201(b); see Haynes v. Wilder Corp., 721 F. Supp.
2d, 1218, 1228 (M.D. Fla. 2010). Costco asserts that its relationship with the independent optometrists who
maintain their practices at Costco’s warehouses is strictly one of landlord/tenant and Costco is not liable for
the policies of its tenants, which may violate the ADA. Costco, however, has already denied liability in its
answer, and this affirmative defense adds nothing to the case.
Affirmative Defense 4 (Lack of standing): Granted. “[S]tanding is not an affirmative defense under federal
law.” Native Am. Arts, Inc, 253 F. Supp. 2d at 1045; see, e.g., Rudzinski v. Metro. Life Ins. Co., No. 05-C574, 2007 WL 2973830, at *1 (N.D. Ill. Oct. 4, 2007); De Lage Landen Financial Services, Inc. v. M.D.M.
Leasing Corp., No. 07-C-045, 2007 WL 4355037, at *3 (N.D. Ill. Dec. 10, 2007); Bd. of Educ. of Thornton
Tp. High Sch. Dist. 205 v. Board of Educ. of Argo Cmty. High Sch. Dist. 217, No. 06-C-2005, 2006 WL
2460590, at *5 (N.D. Ill. Aug. 21, 2006); Huthwaite, Inc. v. Randstad Gen. Partner, No. 06-C-1548, 2006
WL 3065470, at *8 (N.D. Ill. Oct. 24, 2006); Cohn v. Taco Bell Corp., No. 92-C-5852, 1995 WL 247996, at
*5 (N.D. Ill. Apr. 24, 1995). This is because the burden is on the complainant, not the defendant, to prove
that he or she has standing to bring the case. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.
Ct. 2130, 119 L. Ed. 2d 351 (1992); Indemnified Capital Invs., S.A. v. R.J. O'Brien & Assoc., 12 F.3d 1406,
1408–09 (7th Cir. 1993). A defendant may challenge lack of standing in a motion to dismiss, or the court
may raise the issue sua sponte, Native Am. Arts, Inc, 253 F. Supp. 2d at 1045, but it is not an appropriate
affirmative defense.
Affirmative Defense 5 (Compliance with ADA Guidelines): Denied. The cases cited by both parties are
not binding on this court. Defendant is permitted to argue that compliance with the ADAAG negates its
liability under the ADA.
Affirmative Defense 6 (Lack of standing): Granted for the reasons set forth in affirmative defense 4.
Affirmative Defense 7 (Lack of standing): Granted for the reasons set forth in affirmative defense 4.

11C1785 Robles vs. Costco Wholesale Corp.

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