Schmitz et al v. Four D Trucking Inc et al

Filing 33

OPINION AND ORDER granting in part and denying in part 23 Rule 12(f) Motion to Strike. The Court STRIKES Four D and Mr. Kills First, Second, Fifth, and Sixth Affirmative Defenses and Halquists Second, Ninth, Tenth, Eleventh, and Twelfth Affirmative Defenses. Signed by Magistrate Judge Paul R Cherry on 1/28/2014. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
SHARON A. SCHMITZ and
FRANCES A. FIELDS,
Plaintiffs,
v.
FOUR D TRUCKING, INC., et al.,
Defendants.

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Cause No.: 2:13-cv-214-RL-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Strike Defendants’ Affirmative
Defenses [DE 23], filed on August 30, 2013. Defendants Four D Trucking, Inc., (Four D) and
Charles J. Kill filed their Answer on August 9, 2013, alleging numerous affirmative defenses. On
August 19, 2013, Defendant Halquist Stone Company, Inc., (Halquist) filed its answer, also alleging
numerous affirmative defenses.
Federal Rule of Civil Procedure 12(f) provides that courts “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f); see also Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th
Cir. 2009) (citing Rule 12(f) and affirming the striking of portions of a counterclaim). The Seventh
Circuit Court of Appeals has held that motions to strike are generally disfavored—nevertheless, a
motion to strike may “serve to expedite, not delay,” when it seeks to strike portions of a pleading
to “remove unnecessary clutter from the case.” Heller Fin. v. Midwhey Powder Co., Inc., 883 F.2d
1286, 1294 (7th Cir. 1989). Affirmative defenses are stricken “only when they are insufficient on
the face of the pleadings.” Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991)
(citing Heller, 883 F.2d at 1294) (“Ordinarily, defenses will not be struck if they are sufficient as
a matter of law or if they present questions of law or fact.”).

“Affirmative defenses are pleadings and, therefore, are subject to all pleading requirements
of the Federal Rules of Civil Procedure” and “must set forth a ‘short and plain statement’ of the
defense.” Heller, 883 F.2d at 1294 (quoting Fed. R. Civ. P. 8(a)).1 In Heller, the court found several
defenses meritless because they were “nothing but bare bones conclusory allegations,” noting that
the defendant “omitted any short and plain statement of facts and failed totally to allege the
necessary elements of the alleged claims.” Id. at 1295.
I. Four D and Charles J. Kill
Plaintiffs seeks to strike all six of the affirmative defenses filed by Four D and Mr. Kill. The
Court considers each in turn.
A. Affirmative Defense 1
The first affirmative defense states that “Plaintiff’s [sic] Complaint fails to state a claim for
which relief can be granted under Fed. R. Civ. P. 12(b)(6).” Although “failure to state a claim” is
a defense under Federal Rule of Civil Procedure 12(b), it isn’t an affirmative defense because it does
not assume that allegations of the Complaint are true and then explain why, for some other reason,
the defendant is not liable. Affirmative defenses, moreover, must be adequately pled to give the
plaintiff notice of the defense. Heller, 883 F.2d at 1294. Defendant has not provided any allegations
as to how Plaintiffs failed to state a claim. Such a “bare bones legal assertion” fails the standard of
Rule 8(b) and Heller. Id. The Court accordingly strikes Four D and Mr. Kill’s first affirmative
defense.
B. Affirmative Defense 2
The second affirmative defense states that “the occurrence described in Plaintiffs’ Complaint,
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Notably, the Court in Heller does not include the requirement in 8(a)(2) of “showing that the pleader is entitled
to relief.” See Heller Fin. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989); see Fed. R. Civ. P. 8(a)(2).

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Plaintiffs’ claimed injuries and Plaintiffs’ claimed damages were proximately caused by the fault
of Codefendant Halquist Stone Company, Inc.” This, too, fails to plead any facts supporting this
claim. Id. Moreover, this claim is not an affirmative defense but a mere statement that someone else
is at fault. The Court accordingly strikes Four D and Mr. Kill’s second affirmative defense.
C. Affirmative Defenses 3 and 4
The third affirmative defense states that
these Defendants, Four D Trucking, Inc. And Charles J. Kill, reserve
the right to introduce into evidence the proof of collateral source
payments received by or on behalf of Plaintiffs, pursuant to Ind. Code
§ 34-44-1-1, et seq., in the event it is subsequently determined that
such payments were made and are an appropriate matter for
consideration by the Jury.

Similarly, the fourth affirmative defense states that
some or all of Plaintiffs Sharon A. Schmitz and Frances A. Fields’
medical expenses may have been reduced by adjustments, write-offs,
or set-offs, and this evidence should be introduced and considered at
any trial of this case under Stanley v. Walker, 906 N.E.2d 852 (Ind.
2009).

Plaintiffs object that evidence of collateral payments is inappropriate because it cannot legally
change the damage award. They point to Indiana Code § 34-44-1-2, which allows into evidence
some types of collateral source payments and bars others, such as insurance payments or state
compensation. Plaintiffs argue that there is no dispute about any of the medical bills or payments
in this case, and there is no reason to keep the door open for collateral source evidence. This is
premature. As Four D and Mr. Kill rightly point out, this case has not even begun discovery. Who
knows? Maybe there will be a dispute about medical bills and payments. The Court accordingly
denies Plaintiffs’ motion to strike Four D and Mr. Kill’s third and fourth affirmative defenses.
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D. Affirmative Defense 5
The fifth affirmative defense states that
as to any rhetorical paragraphs of the Complaint not specifically
admitted, controverted, or denied, in the preceding Answer of these
Defendants, Four D Trucking, Inc., and Charles J. Kill, same are now
and hereby denied by these Defendants.

Plaintiffs rightly point out that this fails the pleading standards of Rule 8, since it does not include
a short and plain statement of facts. Heller, 883 F.2d at 1294. Denials, moreover, must “fairly
respond to the substance of the allegation.” Fed. R. Civ. P 8. The Court accordingly strikes Four D
and Mr. Kill’s fifth affirmative defense.
E. Affirmative Defense 6
The sixth affirmative defense reserves the right to plead additional affirmative defenses that
become known through discovery. The assertion of the right to put forward additional defenses is
an improper reservation under the Federal Rules of Civil Procedure. See FDIC v. Mahajan, 923, F.
Supp 2d 1133, 1141 (N.D. Ill. 2013). The way to plead additional affirmative defenses is to file a
motion under Federal Rule of Civil Procedure 15. Id. The Court hence strikes Four D and Mr. Kill’s
sixth affirmative defense.
II. Halquist
Plaintiffs also seek to strike a number of Halquist’s Affirmative Defenses. The Court
considers each in turn.
A. Affirmative Defense 2
Halquist’s second affirmative defense provides that it denies anything not specifically
admitted or denied in its first defense. As explained above, this fails the pleading standards of Rule

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8 because it does not include a short and plain statement of the facts. Heller, 883 F.2d at 1294. The
Court accordingly strikes Halquist’s second affirmative defense.
B. Affirmative Defense 5
Plaintiffs seek to strike Halquist’s fifth affirmative defense because it is essentially a
repetition of its fourth affirmative defense. Though very similar, Halquist is correct that assumption
of risk (affirmative defense four) and incurred risk (affirmative defense five) are slightly different
under Indiana law. Pfenning v. Lineman, 947 N.E.2d 392, 400 (Ind. 2011). The Court thus denies
Plaintiffs’ Motion to Strike Halquist’s fifth affirmative defense.
C. Affirmative Defense 9
Halquist’s ninth affirmative defense states that “there was no duty owed by this defendant
to the plaintiffs at the time and place alleged in the plaintiffs’ Complaint.” This fails the requirement
of Rule 8 that pleadings include a short and plain statement of facts. Heller, 883 F.2d at 1294.
Moreover, proving that a defendant owed a duty to the plaintiff is part of the plaintiff’s case, not the
defendant’s. See Bauer v. J.B. Hunt Transp., Inc., 150 F.3d 759, 763 (7th Cir. 1998). The Court
accordingly strikes Halquist’s ninth affirmative defense.
D. Affirmative Defense 10
Halquist’s tenth affirmative defense simply states that “plaintiffs’ claims are barred by the
Sudden Emergency Doctrine.” This also fails the Rule 8 requirement that pleadings include a short
and plain statement of the facts. Heller, 883 F.2d at 1294. The Court accordingly strikes Halquist’s
tenth affirmative defense.
E. Affirmative Defense 11
Halquist’s eleventh affirmative defenses states that this “cause of action should be dismissed

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pursuant to Rules 12(B)(2), 12(B)(3), 12(B)(4), 12(B)(5), 12(B)(7) and 17 of the Federal Rules of
Civil Procedure.” This again fails the short plain statement requirement of Rule 8. Heller, 883 F.2d
at 1294. The Court accordingly strikes Halquist’s eleventh affirmative defense.
F. Affirmative Defense 12
Halquist’s twelfth affirmative defense states that it reserves the right to add additional
affirmative defenses after discovery is over. As explained above, this is an improper reservation
under the Federal Rules of Civil Procedure. See Mahajan, 923, F. Supp 2d at 1141. The way to plead
additional affirmative defenses is to file a motion under Federal Rule of Civil Procedure 15. The
Court hence strikes Halquist’s twelfth affirmative defense.
III. Conclusion
For the reasons laid out above, the Court GRANTS in part and DENIES in part Plaintiffs’
Motion to Strike Defendants’ Affirmative Defenses [DE 23], filed on August 30, 2013. The Court
STRIKES Four D and Mr. Kill’s First, Second, Fifth, and Sixth Affirmative Defenses and
Halquist’s Second, Ninth, Tenth, Eleventh, and Twelfth Affirmative Defenses.
SO ORDERED this 28th day of January, 2014.

s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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