Brown v. Kelly Services Inc
MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 4/18/2017: Plaintiff's motion to strike defendant Kelly's Affirmative Defense Nos. 25-26, 28, 35, 38, 40, and 44 14 is granted, and plaintiff's motion to strike defendant Kelly's Affirmative Defense Nos. 27 and 45 14 is denied.Mailed notice(mad, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
KELLY SERVICES, INC.,
No. 16 C 11152
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Plaintiff Brenda Brown’s motion to strike Defendant Kelly
Services, Inc.’s (“Kelly”) affirmative defenses. (Mot. (Dkt. No. 14).) For the reasons stated
below, we grant in part and deny in part Plaintiff’s motion.
Plaintiff worked as a recruiter for Kelly in its Romeoville, Illinois office.
(Compl. ¶¶ 1, 6.) Plaintiff alleges that during her time at Kelly she observed discrimination
against African-American job applications. (Id. ¶ 9.) Specifically, Plaintiff alleges that another
employee gave preference to non-African American applicants, provided pretextual reasons for
denying African-American applicants particular job assignments, and did not offer
African-American applicants the same assistance as other applicants during the application
process. (Id. ¶¶ 10–13.) Plaintiff claims that on June 20, 2016 she began to complain to Kelly
about the discrimination she witnessed, after which her co-worker “began to treat [her] in a
disrespectful and hostile manner.” (Id. ¶¶ 15–16.) Plaintiff further claims she reported her
coworker’s behavior to her branch manager, who then asked if she wanted to resign. (Id. ¶ 17.)
Plaintiff declined and was terminated on June 28, 2016. (Id. ¶ 18.) Plaintiff filed her complaint
alleging retaliation in violation of 42 U.S.C. § 1981 on December 7, 2016. On February 1, 2017,
Kelly responded by filing its answer and affirmative defenses. (Dkt. No. 8.) Plaintiff moved to
strike those affirmative defenses on February 15, 2017.
Plaintiff’s motion to strike Kelly’s affirmative defenses is governed by Rule 12(f), which
states that “[t]he court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are
generally disfavored because they “potentially serve only to delay,” and so affirmative defenses
“will be stricken only when they are insufficient on the face of the pleadings.” Heller Fin.,
Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). To survive a motion to
strike, an affirmative defense must satisfy a three-part test: “(1) the matter must be properly
pleaded as an affirmative defense; (2) the matter must be adequately pleaded under the
requirements of Federal Rules of Civil Procedure 8 and 9, and (3) the matter must withstand a
Rule 12(b)(6) challenge.” Sarkis’ Cafe, Inc. v. Sarks in the Park, LLC,
55 F. Supp. 3d 1034, 1039 (N.D. Ill. 2014) (citation omitted).
As an initial matter, the parties dispute whether the pleading standard set forth in
Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009) applies to affirmative defenses. (Def.’s Resp.
(Dkt. No. 27) at 2–4); Pl.’s Reply (Dkt. No. 29) at 1–3.) The Seventh Circuit has not yet decided
whether that the Twombly-Iqbal standard applies to affirmative defenses. However, the majority
view of District Court decisions in this circuit is that the pleading standard set forth in Twombly
and Iqbal applies to affirmative defenses. See Sarkis Cafe, 55 F. Supp. 2d at 1040; Shield Tech.
Corp. v. Paradigm Postitioning, LLC, No. 11 C 6183, 2012 WL 4120440, at *8 (N.D. Ill.
Sept. 19, 2012) (“[W]e believe that the test applicable to affirmative defenses should reflect
current pleading standards, and therefore adopt the majority view that Twombly and Iqbal apply
to affirmative defenses.”); Champion Steel Corp. v. Midwest Strapping Prods., Inc.,
No. 10 C 50303, 2011 WL 5983297, at *2 n.2 (N.D. Ill. Nov. 28, 2011) (“The majority of courts
in this circuit who have addressed the issue have concluded that the pleading standards of
Twombly/Iqbal apply to affirmative defenses.”); Riemer v. Chase Bank USA, N.A.,
274 F.R.D 637, 639–40 (N.D. Ill. 2011) (collecting cases). Because “[a]ffirmative defenses are
pleadings and, therefore, subject to all pleading requirements of the Federal Rules of Civil
Procedure,” we agree with the majority view and shall apply the Twombly and Iqbal pleading
standard to affirmative defenses. Heller, 883 F.2d at 1294. Accordingly, Kelly’s affirmative
defenses must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at
570, 127 S. Ct. at 1974).
Kelly asserts 22 affirmative defenses in its answer. (Dkt. No. 8 at 5–7
(numbered 24–46).) Plaintiff moves to strike all of Kelly’s affirmative defenses, except for
defenses 34 and 43.1 (Mot. at 1.) Plaintiff argues that Kelly’s Affirmative Defenses Nos.
25–28, 35, and 38 must be stricken because they are mere legal conclusions. (Pl.’s Mem. ISO
Mot. (Dkt. No. 15) at 3–4, 6–7.) With the exception of Affirmative Defense No. 27, we agree.
For example, Kelly’s Affirmative Defense No. 25 states that “Plaintiff’s Complaint is barred
Kelly also withdrew affirmative defenses 24, 29–33, 36–37, 39, 41–42, and 46 in response to
Plaintiff’s motion. (Def.’s Resp. at 13.) We therefore deny Plaintiff’s motion to strike those
affirmative defenses denied as moot.
because of release, prior judgment, statute of limitations, and/or assignment or other disposition
of the claim before the commencement of the action.” (Dkt. No. 8 at 5.) These “[t]hreadbare
recitals of the elements” would not withstand a Rule 12(b)(6) challenge. Iqbal, 56 U.S. at 678,
129 S. Ct. at 1949; see Heller, 883 F.2d at 1294 (“The remaining defenses are equally meritless.
They are nothing but bare bones conclusory allegations.”). Accordingly, we grant Plaintiff’s
motion to strike Kelly’s Affirmative Defense Nos. 25, 26, 28, 35, and 38.
Kelly’s Affirmative Defense No. 27 states in conclusory fashion that, “[w]ithout
admitting Plaintiff suffered any damages, Plaintiff has failed to mitigate her damages.”
(Dkt. No. 8 at 5.) However, “where discovery has barely begun, the failure to mitigate defense is
sufficiently pled without additional facts.” Thomas v. Exxon Mobil Corp., No. 7 C 7131,
2009 WL 377334, at *4 (N.D. Ill. Feb. 11, 2009) (internal quotation marks omitted)
(quoting AAR Int’l, Inc. v. Vacances Heliades S.A., 202 F. Supp. 2d 788, 800 (N.D. Ill. 2002)).
We therefore deny Plaintiff’s motion to strike Kelly’s Affirmative Defense No. 27.
In its Affirmative Defense No. 40, Kelly states its “actions and communications were
made in good faith and without malice or reckless indifference or a desire to harm Plaintiff.”
(Dkt. No. 8 at 6.) That defense is “nothing more than a mere denial of the allegations in the
complaint,” and is “inappropriately pleaded” as an affirmative defense. Thomas,
2009 WL 377334, at *2 (finding defendant’s defense that its “conduct was not willful” was
inappropriately pleaded as an affirmative defense); see also Weisman v. First
Data Merchant Servs. Corp, No. 6 C 3024, 2006 WL 3694853, at *2 (N.D. Ill. Dec. 11, 2006)
(finding defendant’s defense that it “did not act in willful disregard of the requirements of any
law” was a “redundant denial of plaintiff’s allegations” and not properly pleaded as an
affirmative defense). We therefore grant Plaintiff’s motion to strike Kelly’s Affirmative
Defense No. 40. Holzer v. Prudential Equity Group LLC, 520 F. Supp. 2d 922, 929
(N.D. Ill. 2007) (“It is improper to assert something as an affirmative defense that is nothing
more than a denial of an allegation contained in the complaint.” (citation omitted)).
Kelly’s Affirmative Defense No. 44 states that, “[if] Plaintiff suffered any damages,
which Kelly Services, Inc. disputes, such damages were proximately and legally caused by the
misconduct and fault of Plaintiff or parties other than Kelly Services, Inc.” (Dkt. No. 8 at 7.) In
addition to being a bare-bones legal conclusion, this affirmative defense concerns
“apportionment of liability and the liability of others, [which] are denials.”
Hughes v. Napleton’s Holdings, LLC, No. 15 C 50137, 2016 U.S. Dist. LEXIS 155202, at *17
(N.D. Ill. Nov. 6, 2016); see also Yash Raj Films (USA) Inc. v. Atlantic Video, No. 3 C 7069,
2004 WL 1200184, at *3 (N.D. Ill. May 28, 2004) (striking an affirmative defense that “operates
to reduce liability on a comparative fault basis or operates as a denial of liability altogether, and
as such, does not qualify as an affirmative defense”). Accordingly, we grant Plaintiff’s motion to
strike Kelly’s Affirmative Defense No. 44.
Finally, Plaintiff argues we must strike Kelly’s Affirmative Defense No. 45, which states
that “Plaintiff has executed an arbitration agreement waiving the jurisdiction of this court,”
(Dkt. No. 8 at 7), because Kelly “fail[ed] to attached the alleged arbitration agreement or recite
any of its alleged terms” such that its defense “is simply a legal conclusion without any
supporting facts.” (Pl.’s Mem. at 9.) At the pleading stage, Kelly is not required to provide
proof of the arbitration agreement, or detail the terms of the agreement. Accepting as true
Kelly’s assertion that Plaintiff executed an arbitration that waives the jurisdiction of this court,
which we are required to do at this stage of the litigation, we find that Kelly has plausibly alleged
its Affirmative Defense. Twombly, 550 U.S. at 555–56, 127 S. Ct. at 1964–65. We therefore
deny Plaintiff’s motion to strike Kelly’s Affirmative Defense No. 45.
For the foregoing reasons, we grant Plaintiff’s motion to strike Kelly’s Affirmative
Defense Nos. 25–26, 28, 35, 38, 40, and 44, and deny her motion to strike Affirmative
Defense Nos. 27 and 45. It is so ordered
Honorable Marvin E. Aspen
United States District Judge
Dated: April 18, 2017
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