McDowell v. Carroll County, IN et al
OPINION AND ORDER granting 11 Rule 12(f) Motion to Strike: Court STRIKES the third, fourth, fifth, seventh, eighth and ninth affirmative defenses re 10 Answer to Complaint. Signed by Magistrate Judge Andrew P Rodovich on 5/7/15. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
) Cause No. 2:14-cv-466
CARROLL COUNTY, IN, and PATRICK )
CLAWSON, in his personal and official
OPINION AND ORDER
This matter is before the court on the Motion to Strike Affirmative Defenses [DE 11]
filed by the plaintiff, David McDowell, on March 13, 2015. For the following reasons, the
motion is GRANTED.
On December 24, 2014, the plaintiff, David McDowell, filed his Complaint, which
alleged violations of the First and Fourteenth Amendments to the U.S. Constitution and sought
relief under the Civil Rights Act of 1871, 42 U.S.C. § 1983. On January 1, 2008, McDowell was
hired as the Director of the Carroll County Emergency Management Agency (EMA). McDowell
has alleged that the EMA was an agency established under the laws of the State of Indiana.
McDowell has claimed that he signed one year employment contracts to remain the
Director of the EMA in 2009, 2010, 2011, and 2012, and that the contracts required thirty days
written notice of termination. McDowell’s contract was not renewed for 2013. He has alleged
that his termination deprived him of a property interest without due process rights under the
Fourteenth Amendment. Additionally, he has claimed that the defendant, Patrick Clawson, made
false, stigmatizing, and inflammatory public comments that have prevented him from pursuing
his chosen occupation and have deprived him of a liberty interest under the Fourteenth
Amendment. Last, he has argued that the defendants terminated his contract because of his
political affiliation in violation of the First Amendment.
In their Answer, the defendants pled nine affirmative defenses. McDowell has requested
the court to strike the third, fourth, fifth, seventh, eighth, and ninth affirmative defenses. The
affirmative defenses are listed as follows:
The allegations in Plaintiff’s Complaint against these
Defendants fail to state a claim upon which relief may be granted.
4. To the extent that Plaintiff seeks to hold the individual
defendant liable under Indiana State Law, he is generally immune
for losses which occur within the scope and course of his
employment under the Indiana Tort Claims Act, I.C. § 34-13-3-5.
5. To the extent that Plaintiff seeks to hold the individual
defendant liable under Indiana State Law, he is generally immune
for a loss which results from the performance of a discretionary
task under I.C. § 34-13-3-3(7).
7. To the extent that Plaintiff’s Complaint seeks punitive damages
against Defendants, these claims are barred under the Indiana Tort
Claims Act as punitive damages may not be recovered against
Defendants, because at all relevant times Patrick Clawson was
acting within the scope and course of his employment as an
employee of a governmental entity. I.C. § 34-13-3-4(b).
8. These Defendants are otherwise immune under the Indiana Tort
Claims Act, specifically I.C. § 34-13-3-3.
9. These Defendants reserve the right to plead additional
affirmative defenses as they become known to them.
The defendants did not respond to this motion.
Federal Rule of Civil Procedure 12(f) states that “the court may strike from a pleading
any . . . redundant, immaterial, impertinent, or scandalous matter.” Motions to strike generally
are disfavored, although they may be granted if they remove unnecessary clutter from a case and
expedite matters, rather than delay them. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883
F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade School, 552 F. Supp. 2d 816, 825
(C.D. Ill. 2008). The decision whether to strike material is within the discretion of the court.
Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). “Affirmative
defenses will be stricken only when they are insufficient on the face of the pleadings.” Heller,
883 F.3d at 1294.
First, McDowell has requested the court to strike the defendants’ third affirmative
defense. The third affirmative defense alleged that McDowell’s Complaint failed to state a claim
upon which relief could be granted. “Failure to state a claim” is a recognized defense, but it is
not an affirmative defense because it does not assume that the allegations of the Complaint are
true and then articulate a separate reason why the defendant is not liable. Cottle v. Falcon
Holdings Mgmt., LLC, 2012 WL 266968, at *3 (N.D. Ind. Jan. 30, 2012). The defendants did
not explain how McDowell failed to state a claim, but rather, provided an insufficient bare bone
legal assertion. See Cottle, 2012 WL 266968 at *3 (striking a “failure to state a claim” defense
because the defendant did not provide any allegations to show how the plaintiff failed to state a
claim). Therefore, the court STRIKES the defendants’ third affirmative defense.
Next, McDowell has requested the court to strike the defendants’ fourth, fifth, seventh,
and eighth affirmative defenses. Each defense is based on the Indiana Tort Claims Act.
Indiana’s Tort Claims Act bars claims against political subdivisions unless notice is filed with
the governing body of that political subdivision within 180 days of the loss. Estate of Connor v.
Ambrose, 990 F. Supp. 606, 617 (N.D. Ind. 1997); IND. CODE § 34-13-3-8. McDowell has
brought a Section 1983 action that is based on violations of his due process rights under the First
and Fourteenth Amendments. Indiana’s Tort Claims Act, a notice-of-claim statute, does not
apply to federal Section 1983 actions. Estate of Connor, 990 F. Supp. at 617; see Felder v.
Casey, 487 U.S. 131, 134, 108 S. Ct. 2302, 2304–05, 101 L. Ed. 2d 123 (1988). “This is because
§ 1983 was intended to provide a federal remedy, independently enforceable whether or not it
duplicates a parallel state remedy.” Craig v. Witucki, 624 F. Supp. 558, 559 (N.D. Ind. 1986)
(quoting Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985)). Therefore,
the court STRIKES the fourth, fifth, seventh, and eighth affirmative defenses because they do
not apply to McDowell’s federal Section 1983 claims.
Last, McDowell has requested the court to strike the defendants’ ninth affirmative
defense. The ninth affirmative defense reserved the right to plead additional affirmative
defenses. A reservation to plead additional affirmative defenses is not an affirmative defense.
Moreover, the parties may amend their pleadings pursuant to Federal Rule of Civil Procedure 15.
Therefore, the court STRIKES the ninth affirmative defense because it is not an affirmative
For the foregoing reasons, the Motion to Strike Affirmative Defenses [DE 11] is
ENTERED this 7th day of May, 2015.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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