Genova v. Kellogg et al

Filing 71

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 5/3/2013.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEROME P. GENOVA,
Plaintiff,
v.
ERIC KELLOGG; JOSEPH LETKE;
LETKE & ASSOCIATES, INC., and the
CITY OF HARVEY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

12 C 3105

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the motion of Plaintiff Jerome Genova
(“Genova”) to strike all affirmative defenses asserted by Defendants Eric Kellogg
(“Kellogg”), Joseph Letke (“Letke”), Letke & Associates and the City of Harvey
(collectively “Defendants”), pursuant to Federal Rule of Civil Procedure 12(f). For
the reasons set forth below, the motion is granted in part and denied in part.
BACKGROUND
Genova was employed by Letke and Letke & Associates between June 1, 2009
and April 30, 2010, while Letke was the comptroller for the City of Harvey. During
Genova’s employment with Letke & Associates, Kellogg was the mayor of the City
of Harvey and through his position exerted control over the comptroller’s office. On
several occasions Kellogg threatened to end Letke’s employment as the comptroller if

he did not fire Genova, due to his support of Kellogg’s rival. On April 29, 2010,
Letke terminated Genova from Letke & Associates.
On April 26, 2012, Genova filed a one-count complaint alleging an unlawful
retaliation claim in violation of 42 U.S.C. § 1983 (“ Section 1983”). All defendants
filed motions to dismiss. On February 28, 2013, this Court denied all motions to
dismiss. Genova v. Kellogg et al., 12 C 3105 (N.D. Ill. Feb. 28, 2013). Kellogg and
the City of Harvey (collectively “Harvey Defendants”) filed their answer on March 6,
2013 and Letke and Letke & Associates (collectively “Letke Defendants”) answered
on March 7, 2013. All Defendants filed affirmative defenses in conjunction with their
answers. On March 11, 2013, Genova filed the current motion to strike the Letke
Defendants’ affirmative defenses in their entirety and the Harvey Defendants’ third,
fourth, fifth, sixth and eighth affirmative defenses.
LEGAL STANDARD
Rule 12(f) permits a court to strike “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” 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). Affirmative
defenses must comply with Rule 8(a), which requires a “short and plain statement” of
the defense. Heller Financial v. Midwhey Powder, 883 F.2d 1286, 1294 (7th Cir.
1989). However, “[b]are bones conclusory allegations” are not permitted. Id. at 1295.

-2-

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 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.
DISCUSSION
I. Letke Defendants
Genova moves to strike all five affirmative defenses asserted by the Letke
Defendants.

Pursuant to Genova’s motion, the Letke Defendants voluntarily

withdraw affirmative defenses one, two, three, and five.

The Letke Defendants

contest Genova’s motion to strike their forth affirmative defense and assert that their
defense is adequately pled at this early stage in the case when limited discovery has
been exchanged.
The Letke Defendants’ fourth defense asserts that Genova failed to mitigate his
damages and alternatively to the extent that Genova did mitigate his damages, the
Letke Defendants are entitled to an offset. Genova argues that the defense must be
stricken, due to the insufficiency of the facts pled in support of their defense as
required by Rule 8(a). Rule 8 only requires a “short and plain” statement which calls
for the party raising the affirmative defense to provide enough facts to place their
opponent on notice of the events on which the claim is based. Sanchez v. La Rosa Del

-3-

Monte Express, Inc., 1994 WL 603901, at *2 (N.D. Ill. 1994). At this early stage in
the litigation, where a limited amount of discovery has been exchanged, it would be
unreasonable to require the Letke Defendants to assert a more fact intensive
affirmative defense. See id.

A more detailed pleading would require the Letke

Defendants to possess a degree of clairvoyance concerning Genova’s post-termination
conduct. See id. The Court denies Genova’s motion to strike the Letke Defendants’
fourth affirmative defense.
2. The Harvey Defendants
Genova moves to strike the Harvey Defendants’ third, fourth, fifth, sixth, and
eighth affirmative defenses. Pursuant to Genova’s motion, the Harvey Defendants
voluntarily withdraw their sixth and eighth affirmative defenses.
The Harvey Defendants’ third affirmative defense asserts that Kellogg 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 brought pursuant to 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). The Harvey

-4-

Defendants’ third affirmative defense is appropriately pled and the Court denies
Genova’s motion to strike this defense.
The Harvey Defendants’ fourth affirmative defense consists of two assertions.
First the Harvey Defendants contend that they exercised reasonable care to prevent
and correct their discriminatory behavior. Secondly, the affirmative defense contends
that Genova failed to bring his complaints to the attention of the Harvey Defendants
in accordance with the City of Harvey internal policies. Genova argues that the
assertion of this defense does not have any bearing on the facts of their retaliation
case under Section 1983. Genova’s complaint specifies that he was fired in retaliation
for exercising his First Amendment rights.
The first portion of the fourth affirmative defense does not specify any acts
taken by the Harvey Defendants which support their blanket contention. The Harvey
Defendants would be in the best position to review and enunciate any remedial acts
that they took to mitigate any unlawful behavior. Their failure to specify what actions
they took reduces their contention to a mere conclusory assertion.
The second portion of the fourth affirmative defense seems to impose an
internal complaint requirement which Genova would have to establish to assert a
successful First Amendment retaliation claim. To establish a prima facie case of First
Amendment retaliation, a plaintiff must establish that: (1) his speech was
constitutionally protected, (2) he has suffered a deprivation likely to deter free speech,

-5-

and (3) his speech was at least a motivating factor in the employer’s action. Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006). The Harvey Defendants affirmative
defense requiring an internal complaint as a requisite hurdle in establishing a First
Amendment retaliation is an insufficient defense. The Court therefore strikes the
Harvey Defendants’ fourth affirmative defense.
The Harvey Defendants’ fifth affirmative defense mirrors the Letke
Defendants’ third affirmative defense in asserting that Genova failed to mitigate his
damages. As discussed above, at this early stage in the litigation with a minimal
amount of discovery being exchanged, the Harvey Defendants have sufficiently
informed Genova of their asserted defense. The Court denies Genova’s motion to
strike the Harvey Defendants’ fifth affirmative defense.
CONCLUSION
For the forgoing reasons, Genova’s motion to strike the Letke Defendants’
fourth affirmative defense and the Harvey Defendants’ third and fifth affirmative
defenses is denied.

Genova’s motion to strike the Harvey Defendants’ fourth

affirmative defense is granted.

Charles P. Kocoras
United States District Judge
Dated:

May 3, 2013

-6-