Velez v. Longhorn Steaks, Inc.

Filing 33

WRITTEN Opinion entered by the Honorable Ronald A. Guzman on 9/10/2012. For the reasons stated below, the plaintiff's motion to strike certain affirmative defenses [ 23 -1] is granted in part and denied in part. Affirmative Defenses 2, 3 and 28 are stricken with prejudice and Affirmative Defense 1 is stricken without prejudice. The motion to strike Affirmative Defenses 4, 7-15 and 27 is denied. Darden may replead Affirmative Defense 1 within 7 days of the date of entry of this order. [For further detail see minute order.] Mailed notice (lw, ).

Order Form (01/2005)

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

Ronald A. Guzman

CASE NUMBER

12 C 4857

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/10/2012

Velez v. Longhorn Steaks and Darden Restaurants, Inc.

DOCKET ENTRY TEXT

For the reasons stated below, the plaintiff’s motion to strike certain affirmative defenses [23-1] is granted in
part and denied in part. Affirmative Defenses 2, 3 and 28 are stricken with prejudice and Affirmative
Defense 1 is stricken without prejudice. The motion to strike Affirmative Defenses 4, 7-15 and 27 is denied.
Darden may replead Affirmative Defense 1 within 7 days of the date of entry of this order.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
The plaintiff moves to strike Darden’s affirmative defenses 1-4, 7-15, and 27-28 as insufficiently pled.
Under Fed. R. Civ. P. 12(f), a court may strike “any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Affirmative defenses are pleadings subject to the requirements of the
Federal Rules of Civil Procedure. Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 737 (N.D. Ill. 1982).
Consequently, courts in this district have traditionally utilized a three-part inquiry when examining
affirmative defenses subject to a motion to strike: (1) “whether the matter is appropriately pleaded as an
affirmative defense”—“[o]nly matters that deserve a clear ‘no’ answer will be stricken to make the pleadings
more concise”; (2) “if it is adequately pleaded under the requirements of Rules 8 and 9”—if “inadequately
pleaded, [the affirmative defense] will be dismissed without prejudice to enable defendant[ ] to correct that
technical deficiency”; and (3) whether the affirmative defense meets the Rule 12(b)(6) standard. Id. (citations
omitted); see Powell v. W. Asset Mgmt., 773 F. Supp. 2d 761, 762 (N.D. Ill. 2011). Rule 8(a)(2) provides that
a complaint, or here, an affirmative defense, must include “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to strike is similar to a motion to
dismiss under Rule 12(b)(6) in that neither a complaint nor an affirmative defense need contain detailed
factual allegations. See ABC Business Forms, Inc. v. Pridamor, Inc., No. 09 CV 3222, 2009 WL 4679477, at
*1 (N.D. Ill. Dec.1, 2009). Rather, under notice pleading they are sufficient as long as they raise “above the
speculative level” the party’s right to relief or to invoke the defense, giving the opposing party fair notice of
the nature of the claim or defense. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“An affirmative defense admits the plaintiff's action but provides a reason the defendant is excused
from some or all liability.” Tucker Firm, LLC v. Alise, No. 11 C 1089, 2012 WL 252790, at *7 (N.D. Ill. Jan.
25, 2012). Thus, it is improper to assert something as an affirmative defense that is nothing more than a
denial of an allegation contained in the complaint. Rivertree Landing, L.L.C. v. Murphy, 246 F.R.D. 667, 668
(N.D. Ill. 2007); Instituto Nacional de Comercializacion Agricola (Indeca) v. Cont'l Ill. Nat'l Bank & Trust
12C4857 Velez v. Longhorn Steaks, et al.

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STATEMENT
Co., 576 F. Supp. 985, 989 (N.D. Ill. 1983). “The basic concept of an affirmative defense is an admission of
the facts alleged in the complaint, coupled with the assertion of some other reason defendant is not liable.”
Indeca, 576 F. Supp. at 989 (emphasis in original). Darden’s Affirmative Defenses 2 and 3, respectively,
allege that the defendant is not a proper defendant as it was not the plaintiff’s employer and that the plaintiff
cannot state a cause of action under the IWPCA because there is not a contract or agreement. These defenses
do not admit the plaintiff’s causes of action and instead challenge them; thus, they are not proper affirmative
defenses and are stricken with prejudice.
Darden’s Affirmative Defense 1 states only that “[t]he complaint, in whole or in part, fails to state a
claim upon which relief can be granted.” (Darden’s Answer, Dkt. # 17, at 26.) This Court has made clear that
an affirmative defense may not simply restate the standard for dismissal under Rule 12(b)(6), see, e.g., Ring v.
Bd. of Educ. Cmty. Sch. Dist. No. 60, No. 03 C 7397, 2004 WL 1687009, at *2 (N.D. Ill. July 27, 2004), and
the Court holds that such a conclusory statement is insufficient to allege an affirmative defense. The Court
strikes this affirmative defense without prejudice.
The Court has reviewed Affirmative Defenses 4, 7-15 and 27 (alleging that the plaintiff cannot state a
cause of action under the IWPCA because her allegations merely rely on the success of her FLSA and IMWL
claims, Darden acted in good faith, Darden acted with a lack of willfulness, the plaintiff’s claims are barred
by § 10 of the Portal-to-Portal Act, the plaintiff’s claims are barred by § 11 of the Portal-to-Portal Act, the
plaintiff failed to mitigate her damages, Darden is entitled to set-off, the plaintiff’s claim for compensation
must be reduced by compensation already paid to her, the complaint fails to state a claim for prejudgment
interest, the plaintiff is not entitled to equitable relief, and the plaintiff’s claims are barred to the extent that
she or any other class members have filed for bankruptcy and fail to list the overtime claim as a potential
asset) and concludes that they are properly pled as affirmative defenses. “Ordinarily, defenses will not be
struck if they are sufficient as a matter of law or if they present questions of law or fact.” Heller Fin., Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). At any time that Darden determines during
discovery that it has no factual or legal basis for any of its affirmative defenses, it shall seek leave to
voluntarily dismiss them.
Finally, Affirmative Defense No. 28, in which Darden reserves the right to amend its Answer and
raise additional defenses and pursue any counterclaims, is stricken. If Darden desires to amend its Answer or
file a counterclaim, it must file a motion seeking leave of the Court to do so.
Thus, Affirmative Defenses 2, 3 and 28 are stricken with prejudice and Affirmative Defense 1 is
stricken without prejudice. The motion to strike Affirmative Defenses 4, 7-15 and 27 is denied. Darden may
replead Affirmative Defense 1 within 7 days of the date of entry of this order.

12C4857 Velez v. Longhorn Steaks, et al.

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