Gaeta v. Mercer Belanger Professional Corporation

Filing 36

OPINION AND ORDER: The Court hereby GRANTS in part 34 Plaintiff's Motion to Strike and ORDERS the Defendant's answers to paragraphs 12, 13, 31, 45 and 53 and its sixth, seventh, eight, and tenth affirmative defenses are hereby STRICKEN. Signed by Magistrate Judge John E Martin on 10/13/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
EDWARD GAETA,
Plaintiff,

)
)
)
v.
)
)
MERCER BELANGER PROFESSIONAL )
CORPORATION,
)
Defendant.
)

CAUSE NO.:4:16-CV-58-JVB-JEM

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Strike [DE 34], filed by Plaintiff on
September 12, 2017. Plaintiff requests that the Court strike certain paragraphs of Defendant’s
Answer as impermissible, qualified denials and strike several affirmative defenses as insufficient.
Defendant has not filed a response and the time to do so has passed.
I.

Standard of Review
Federal Rule of Civil Procedure 12(f) provides that a “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, but when striking portions of a pleading
“remove[s] unnecessary clutter from the case,” the motion may “serve to expedite, not delay.” Heller
v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Ultimately, whether to strike
material under Rule 12(f) is within the sound discretion of the court. Talbot v. Robert Matthews
Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). Affirmative defenses that “present substantial
questions of law or fact” will not be stricken. United States v. 416.81 Acres of Land, 514 F.2d 627,
631 (7th Cir. 1975). Accordingly, motions to strike affirmative defenses “will not be granted unless
it appears to a certainty that plaintiffs would succeed despite any state of facts which could be
proved in support of the defense.” Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991).

However, because affirmative defenses are pleadings, they must meet all pleading requirements of
the Federal Rules of Civil Procedure, including “set[ting] forth a ‘short and plain statement’ of the
defense.” Heller, 883 F.2d at 1294 (quoting Fed. R. Civ. P. 8(a)). “[B]are bones conclusory
allegations” which “omit[] any short and plain statement of facts and fail[] totally to allege the
necessary elements of the alleged claims” will not meet this standard and may be stricken. Id. at
1295. Ultimately, whether to strike material under Rule 12(f) is within the sound discretion of the
court. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).
II.

Analysis
Plaintiff argues that the Court should strike a number of paragraphs of Defendant’s Answer

and several of its affirmative defenses.
A.

Answer

Plaintiff argues that Defendant’s responses to the Complaint in paragraphs 12, 13, 31, 45,
and 53 are impermissible qualified denials. Each of them states, “The allegations contained in
rhetorical paragraph [x] of plaintiff’s complaint set forth a legal conclusion to which no response
is required. To the extent any response is required, the allegation is expressly denied.” Rule 8(b)
addresses responsive pleadings and requires a denial to “fairly respond to the substances of the
allegation.” Fed. R. Civ. P. 8(b)(2). If a party “does not intend to deny all the allegations,” they
“must either specifically deny designated allegations or generally deny all except those specifically
admitted,” and if denying “only part of an allegation must admit the part that is true and deny the
rest.” Fed. R. Civ. P. 8(b)(3), (4). Furthermore, Rule 8 provides that “[a] party that lacks knowledge
or information sufficient to form a belief about the truth of an allegation must so state, and the
statement has the effect of a denial.” Fed. R Civ. P. 8(b)(5). Other courts addressing “to the extent
that” language in responses have similarly concluded that they do not meet the pleading
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requirements of Rule 8. Trustees of Auto. Mechanics Local No. 701 Pension & Welfare Funds v.
Union Bank of California, N.A., No. 08 C 7217, 2009 WL 4668580, at *1 (N.D. Ill. Dec. 2, 2009)
(“‘[T]o the extent’ is a telltale tipoff that [the defendant] has failed to comply with the notice
pleading requirements that the federal system imposes on defendants as well as plaintiffs.”); Reis
Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp. 2d 897, 907 (N.D. Ill. 2006) (“Upon review,
the Court concludes that the above language [denying allegations “to the extent that”] does not
constitute an admission or denial of [the plaintiff]’s allegations as required by Rule 8; instead the
language is equivocal and serves to confuse the issues that are in dispute.”). Defendants have not
filed a response or otherwise objected to the request to strike. Because there is no way for the Court
to determine what facts Defendants are actually admitting or denying, striking the answers to
paragraphs 12, 13, 31, 45, and 53 is appropriate.
B.

Affirmative Defenses

Plaintiff also argues that a number of Defendant’s affirmative defenses should be stricken.
Defendant’s first affirmative defense is simple statement that the “complaint fails to state a claim
upon which relief can be granted.” Defendant argues that this is a boilerplate defense and
insufficient as pled. However, the former Federal Rule of Civil Procedure 84, now abrogated, and
the accompanying Form 30 in the Appendix to the Rules, explicitly provided for this affirmative
defense. See Kimbrew v. Advocate Health & Hosps. Corp., No. 10 C 4531, 2010 WL 5135908, at
*1 (N.D. Ill. Dec. 8, 2010) (declining to strike on the grounds that “[the] first defense, however,
follows the form set forth in the Federal Rules of Civil Procedure”) (citing Fed. R. Civ. P. Form 30);
Leon v. Jacobson Transp. Co., No. 10 C 4939, 2010 WL 4810600, at *2 (N.D. Ill. Nov. 19, 2010)
(“[T]his language is specifically listed in Form 30, and Rule 84 explicitly states that the Forms

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‘suffice’ under the rules.”). Although Plaintiff is correct that the is boilerplate and lacks any specific
information, it does meet the Rule 8 pleading standard and will not be stricken.
Plaintiff also argues that Defendant’s sixth, seventh, and eighth defenses should be stricken.
These defenses all refer to Duran L. Keller, one of Plaintiff’s attorneys. Defendant’s sixth and
seventh defense are that Defendant had a good faith belief that Plaintiff was not represented by
counsel because of unspecified actions or statements by Keller, and the eight defense states: “Duran
L. Keller is named as a ‘nonparty’ in this action pursuant to Ind. Code § 34-51-2-16.” Plaintiff
argues that these are all boilerplate assertions unconnected to the underlying case, without any facts,
that fail to appraise the Court or the parties of the circumstances of a defense under Rule 8(c).
Plaintiff also argues that allowing this defense may affect Plaintiff’s ability to be represented by the
counsel of his choice. Defendant has not responded to the instant Motion, and, absent factual
information or identifiable applicable legal doctrine, these defenses will be stricken as impermissibly
conclusory. If Defendant is attempting to join Durant as a necessary party or to bring a counter-claim
against him, he may seek leave of Court to do so.
Plaintiff also seeks to have Defendant’s tenth affirmative defense stricken. It is a general
denial of Plaintiff’s allegations, without specificity, and, as Defendant responded to each of
Plaintiff’s numbered claims, is stricken as unnecessary clutter.

III.

Conclusion
For the foregoing reasons, the Court hereby GRANTS in part Plaintiff’s Motion to Strike

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[DE 34] and ORDERS that Defendant’s answers to paragraphs 12, 13, 31, 45, and 53, and its sixth,
seventh, eighth, and tenth affirmative defenses are hereby STRICKEN.
SO ORDERED this 13th day of October, 2017.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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