Liguria Foods, Inc v. Griffith Laboratories, Inc

Filing 23

MEMORANDUM Opinion and Order granting in part and denying in part 14 Motion to Strike Certain Affirmative Defenses (See Order Text). If Defendant wishes to file an amended answer that is consistent with this order, it must do so no later than 12/10/2014. Signed by Judge Mark W Bennett on 11/13/2014. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LIGURIA FOORS, INC.,
No. C14-3041-MWB
Plaintiff,
vs.
GRIFFITH LABORATORIES, INC.,
Defendant.

MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFF’S
MOTION TO STRIKE CERTAIN
AFFIRMATIVE DEFENSES

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION AND BACKGROUND .............................................. 2 

II. 

LEGAL ANALYSIS ........................................................................ 4 
A. 
Rule 12(f) Standards ............................................................... 4 
B. 
Analysis Of The Challenged Defenses .......................................... 7 
1. 
First affirmative defense-failure to state a claim ..................... 7 
2. 
Second affirmative defense-equitable defenses ....................... 8 
3. 
Fifth affirmative defense-statute of limitations or
repose ......................................................................... 9 
4. 
Seventh and eighth affirmative defenses-preemption
by federal law/compliance with applicable statutes ................ 10 
5. 
Ninth
affirmative
defense-failure
to
join
indispensable parties ..................................................... 11 

III. 

CONCLUSION ............................................................................ 12 

I.

INTRODUCTION AND BACKGROUND

On July 3, 2014, Liguria Foods, Inc. (“Liguria”) filed this action, against Griffith
Laboratories Inc. (“Griffith”), asserting claims for breach of implied warranty for a
particular purpose (Count I) and breach of implied warranty of merchantability (Count
II). Liguria, a manufacturer of pepperoni and other dried sausages, alleges that Griffith,
a manufacturer of seasonings and spice blends for use in the food industry, sold it “spice
blocks,” for its pepperoni products, which failed to provide the appropriate amounts of
antioxidant preservatives.

As a result, Liguria alleges that its pepperoni products

discolored and spoiled prematurely, causing Liguria to sustain substantial losses.
On August 29, 2014, after obtaining an extension, Griffith filed its answer,
denying Liguria’s claims. More importantly, for present purposes, Griffith asserted
several affirmative defenses, including the following:
First Affirmative Defense
(Failure to State a Claim)
1.
Liguria’s Complaint fails to state a claim upon
which relief may be granted and therefore should be dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

Second Affirmative Defense
(Equitable Defenses)
2.
Liguria’s claims should be dismissed pursuant
to the equitable doctrines of estoppel, laches and unclean
hands.
...

2

Fifth Affirmative Defense
(Statutes of Limitations and Repose)
5.
Liguria’s claims and/or causes of action are
barred, in whole or in part, by the applicable statutes of
limitation and/or repose.
...
Seventh Affirmative Defense
(Preemption by Federal Law)
7.
Liguria’s claims against Griffith may be barred
in whole or in part and/or preempted by applicable federal
law, with which Griffith complied.
Eighth Affirmative Defense
(Compliance with Applicable Statutes)
8.
Griffith complied with all relevant applicable
federal and state statutes and administrative regulations
existing at the time of the events at issue in Liguria’s
Complaint.
Ninth Affirmative Defense
(Failure to Join Indispensable Parties)
9.
The Complaint and all claims for relief therein
should be dismissed on the ground that Liguria may have
failed to join necessary and indispensable parties.
Griffith’s Answer at 13-16.
On September 19, 2014, Liguria filed its motion to strike certain affirmative
defenses (docket no. 14). In its motion, Liguria moves, pursuant to Federal Rule of Civil
Procedure 12(f), to strike Griffith’s first, second, fifth, seventh, eighth, and ninth
affirmative defenses. Griffith filed its response to Liguria’s motion on October 9, 2014.
Griffith asserts that Liguria’s motion is premature since no discovery has taken place yet
3

in the case and it is entitled to factually develop each of its affirmative defenses. Liguria
then filed a timely reply brief in support of its motion.
II.

LEGAL ANALYSIS

A.

Rule 12(f) Standards

As I have explained,
Rule 12 of the Federal Rules of Civil Procedure . . .
provides for a motion to strike, as follows:
(f) Motion to Strike. The court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The
court may act:
(1) on its own; or
(2) on motion made by a party either before
responding to the pleading or, if a response is
not allowed, within 21 days after being served
with the pleading.
FED.R.CIV.P. 12(f). In ruling on a Rule 12(f) motion, the
court “enjoy[s] liberal discretion,” and its ruling is reviewed
only for abuse of that discretion. See BJC Health Sys. v.
Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir.2007);
Nationwide Ins. Co. v. Central Missouri Elec. Coop., Inc.,
278 F.3d 742, 748 (8th Cir.2001); Stanbury Law Firm v. IRS,
221 F.3d 1059, 1063 (8th Cir.2000); Chock v. Northwest
Airlines, Inc., 113 F.3d 861, 863–64 n. 3 (8th Cir.1997). The
rule embodies this discretion, because it is cast in permissive
terms (“the court may act ...”) rather than mandatory terms.
Fed.R.Civ.P. 12(f); see also Stanbury, 221 F.3d at 1063
(“Because the rule is stated in the permissive, however, it has
always been understood that the district court enjoys ‘liberal
discretion’ thereunder.”). The Eighth Circuit Court of
Appeals has also recognized that, “[d]espite this broad
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discretion ... striking a party's pleadings is an extreme
measure, and, as a result, we have previously held that
‘[m]otions to strike under Fed. R. Civ. P. 12(f) are viewed
with disfavor and are infrequently granted.’” Stanbury, 221
F.3d at 1063 (quoting Lunsford v. United States, 570 F.2d
221, 229 (8th Cir.1977), in turn citing 5 Wright & Miller,
Federal Practice and Procedure: Civil § 1380 at 783 (1969));
accord BJC Health Sys., 478 F.3d at 917 (citing Stanbury).
Applying these standards, the Eighth Circuit Court of Appeals
has ruled that even matters that are not “strictly relevant” to
the principal claim at issue should not necessarily be stricken,
if they provide “important context and background” to claims
asserted or are relevant to some object of the pleader's suit.
Id.
Holt v. Quality Egg, L.L.C., 777 F. Supp. 2d 1160, 1168-69 (N.D. Iowa 2011) (footnotes
omitted). Furthermore,
the court should not strike a defense as “legally insufficient”
if the defense is either “‘sufficient as a matter of law or if it
fairly presents a question of law or fact which the court ought
to hear.’” Lunsford v. United States, 570 F.2d 221, 229 (8th
Cir. 1977) (quoting 2A Moore's Federal Practice ¶ 12.21 at
2437 (2d ed. 1975)). Therefore, the Eighth Circuit Court of
Appeals has been “reluctant to rule” on the sufficiency of a
defense that presents either legal or factual uncertainty
“without the benefit of a full record.” Id. On the other hand,
the court may properly strike a defense under Rule 12(f) as
“legally insufficient,” if it is foreclosed by prior controlling
decisions or statutes. See United States v. Dico, Inc., 266
F.3d 864, 879–80 (8th Cir. 2001) (the district court properly
struck a due process affirmative defense on the ground that it
was foreclosed by a prior decision of the Eighth Circuit Court
of Appeals and a subsequent decision of the United States
Supreme Court had not undermined the appellate court’s
decision, as the defendant argued); United States v.
Winnebago Tribe of Nebraska, 542 F.2d 1002, 1007 (8th Cir.
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1976) (a defense was “clearly insufficient” where it was
contrary to provisions of the Flood Control Act of 1944).
Holt, 777 F. Supp. 2d at 1169 n.5; accord F.D.I.C. v. Dosland, 298 F.R.D. 388, 39293 (N.D. Iowa 2013); International Motor Contest Ass’n, Inc. v. Staley, 434 F. Supp.
2d 650, 662 (N.D. Iowa 2006).1 Keeping these standards in mind, I will consider the
1

Liguria does not contend that the Iqbal/Twombly heightened pleading standard applies
to Griffith’s affirmative defenses. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (holding that to survive a motion to dismiss, a complaint must “state a claim to
relief that is plausible on its face”) (emphasis added); accord Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”). The Eighth Circuit Court of Appeals has yet to decide whether
the heightened Iqbal/Twombly standard applies to affirmative defenses. Federal district
courts are divided on the question. Compare Sarkis’ Café, Inc. v. Sarks in the Park,
L.L.C., --- F. Supp.2d ---, 2014 WL 3018002, at * (N.D. Ill. July 3, 2014); Long v.
Welch & Rushe, Inc., --- F .Supp.2d ---, 2014 WL 2963975, at *11 (D. Md. June 30,
2014); Newborn Bros. Co. v. Albion Eng’g Co., 299 F.R.D. 90, 97 (D.N.J. 2014); Shaw
v. Prudential Ins. Co. of Am., No. 10–CV–3355, 2011 WL 5920912 (W.D. Mo. Nov.
28, 2011); United States v. Brink, No. C-10-243, 2011 WL 835828, at *3 (S.D. Tex.
Mar.4, 2011); Racick v. Dominion Law Assocs., 270 F.R.D. 228, 233 (E.D.N.C. 2010;
EEOC v. Hibbing Taconite Co., 266 F.R.D. 260, 267–68 (D. Minn. 2009) (all applying
the Iqbal/Twombly heightened pleading standard to the pleading of an affirmative
defense), with United States ex. Rel. Parikh v. Citizens Med. Ctr., --- F.R.D. ---, 2014
WL 4364875, at *2 (S.D. Tex. Sept. 3, 2014); Polk v. Legal Recovery Law Offices, 291
F.R.D. 485, 490 (S.D. Cal. 2013); Strauss v. Centennial Precious Metals, Inc., 291
F.R.D. 338, 343 (D. Neb. 2013); Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D.
Cal. 2013); Hayden v. United States, No. 4:12 CV 2030 DDN, 2013 WL 5291755, *3
(E.D. Mo. Sept. 19, 2013); Bayer CropScience AG v. Dow AgroSciences LLC, 2011
WL 6934557, at *1–2 (D. Del. Dec. 30, 2011); CitiMortgage, Inc. v. Draper & Kramer
Mortgage Corp., No. 4:10CV1784, 2012 WL 3984497 (E.D. Mo. Sept. 11, 2012); U.S.
Bank Nat'l Ass'n v. Education Loans Inc., Civ. No. 11–1445, 2011 WL 5520437 (D.
Minn. Nov. 14, 2011); Ash Grove Cement Co. v. MMR Constructors, Inc., No. 4:10–
CV–4069, 2011 WL 3811445 (W.D. Ark. Aug. 29, 2011); Wells Fargo & Co. v. United
States, 750 F.Supp.2d 1049 (D. Minn. 2010); Holdbrook v. SAIA Motor Freight Line,

6

parties’ arguments for and against striking the six affirmative defenses objected to by
Liguria.

B.
1.

Analysis Of The Challenged Defenses

First affirmative defense-failure to state a claim

On its First Affirmative Defense, Griffith claims that Liguria’s Complaint fails to
state a claim upon which relief might be granted. Liguria argues that Griffith fails to
allege any facts which might support this defense. Liguria also argues that failure to state
a claim is not a properly asserted affirmative defense, but rather an assertion of a defect
in its case. Griffith does not address Liguria’s arguments but, instead, contends that this
defense is entitled to additional factual development.
“A defense which points out a defect in the plaintiff's prima facie case is not an
affirmative defense.” In re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th
Cir.1988); accord Tomason v. Stanley, 297 F.R.D. 541, 546 (S.D. Ga. 2014); Biscayne
Cove Condo. Ass'n, Inc. v. QBE Ins. Corp., 951 F. Supp.2d 1292, 1305 (S.D. Fla.
2013); Pujals ex rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F.Supp.2d 1322, 1328
(S.D. Fla. 2011). Thus, Griffith’s First Affirmative Defense is not an affirmative defense
because failure to state a claim “is a defect in the plaintiff's claim; it is not an additional
set of facts that bars recovery notwithstanding the plaintiffs valid prima facie case.”
Boldstar Technical, LLC v. Home Depot, Inc., 517 F. Supp.2d 1283, 1292 (S.D. Fla.
LLC, No. 09-cv-02870-LTB-BNB, 2010 WL 865380, at *2 (D. Colo. Mar. 8, 2010) (all
applying only the fair notice standard to the pleading of an affirmative defense). As I
explained last year, in declining to apply the Iqbal/Twombly heightened pleading standard
to affirmative defenses, “even in the case of affirmative defenses that are based on ‘bare
bones conclusory allegations,’ the appropriate procedure for clarification of the factual
bases for affirmative defenses is discovery, and the appropriate procedure for challenging
the factual sufficiency of affirmative defenses is ordinarily a motion for summary
judgment.” Dosland, 298 F.R.D. at 394.
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2007); see, e.g.; Biscayne Cove Condo. Ass'n, Inc., 951 F. Supp.2d at 1305; F.T.C. v.
Johnson, No. 2:10–cv–002203, 2013 WL 4039069, at *3 (D. Nev. Aug. 5, 2013);
Barnes v. AT & T Pension Ben. Plan–Nonbargained Program, 718 F. Supp.2d 1167,
1174 (N.D. Cal. 2010). But see SEC v. Toomey, 866 F. Supp. 719, 723 (S.D.N.Y.
1992) (“[T]he failure-to-state-a-claim defense is a perfectly appropriate affirmative
defense.”). Nonetheless, Griffith is entitled to assert the substance of this defense in its
Answer. See FED. R. CIV. P. 12(b)(6). In this situation, other courts have acknowledged
that while failure to state a claim is not an affirmative defense, it may nonetheless be
treated as a denial. See Tomason, 297 F.R.D. at 546; Biscayne Cove, 951 F. Supp. at
1305. Therefore, I deny this portion of Liguria’s motion to strike and will treat this
defense as a denial.
2.

Second affirmative defense-equitable defenses

Liguria has also moved to strike Griffith’s second affirmative defense, which is
that “Liguria’s claims should be dismissed pursuant to the equitable doctrines of estoppel,
laches and unclean hands.”2 Griffith’s Answer at 13. Liguria argues that Griffith fails
to allege any facts which would support these equitable defenses and, thus, fails to provide
Liguria with the bases for these defenses. Griffith responds that these defenses are
sufficiently raised for purposes of Rule 8 by their bare assertion. Griffith also contends
Liguria’s motion is premature because Griffith is entitled to factual development of these
defenses through discovery.

2

The United States Supreme Court has explained the unclean hands defense is “a
self-imposed ordinance that closes the doors of a court of equity to one tainted with
inequitableness or bad faith relative to the matter in which he seeks relief, however
improper may have been the behavior of the defendant.” Precision Instrument Mfg. Co.
v. Automotive Maint. Mach. Co., 324 U.S. 806, 814 (1945); see E.E.O.C. v. Hibbing
Taconite Co., 266 F.R.D. 260, 269 (D. Minn. 2009) (“Unclean hands is an equitable
defense which prevents a party from maintaining a suit in equity.”).
8

I conclude that Griffith has pled these defenses adequately. Although stated in a
conclusory manner, Griffith’s Answer puts Liguria on notice that it will pursue these
defenses. Liguria, however, contends that Griffith has failed to plead facts which would
support these defenses.

I conclude that such a heightened pleading requirement is

incongruous with the concept of notice pleading, as well as the instruction that pleadings
“must be construed so as to do justice.” FED. R. CIV. P. 8(e). Moreover, the Eighth
Circuit Court of Appeals has made it clear that affirmative defenses “need not be
articulated with any rigorous degree of specificity” and are “sufficiently raised for
purposes of Rule 8 by [their] bare assertion.” Zotos v. Lindbergh Sch. Dist., 121 F.3d
356, 361 (8th Cir. 1997). Therefore, I deny this portion of Liguria’s motion.
3.

Fifth affirmative defense-statute of limitations or repose

Griffith alleges for its fifth affirmative defense that “Liguria’s claims and/or causes
of action are barred, in whole or in part, by the applicable statutes of limitation and/or
repose.” Griffith’s Answer at 14. Liguria seeks to strike this affirmative defense on the
ground that Griffith’s assertion of this defense is conclusory and fails to provide the
specific factual basis upon which this defense could possibly be applicable. Griffith points
out that Iowa’s statute of limitations for the two causes of action asserted against it here,
breach of implied warranty for a particular purpose and breach of implied warranty of
merchantability, is five years and that the events giving rise this lawsuit occurred in 2012
and 2013, well within that period.
Under Iowa law, a five-year statute of limitations governs actions for breach of
implied warranty. See Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa
1990); Richards v. Midland Brick Sales Co., 551 N.W.2d 649, 652 (Iowa App.1996)
Such actions must be filed within five years after they accrue. IOWA CODE § 614.1(4).

9

Generally, actions for breach of implied warranty accrue when delivery is made,
regardless of the lack of knowledge of the breach.3 IOWA CODE § 554.2725(2).
Liguria brought this action on July 3, 2014. Therefore, all claims against Griffith
that accrued before July 11, 2009 are time-barred by the statute of limitations. It is
uncontested that in 2013, Liguria notified Griffith of complaints Liguria received, in late
2012 and 2013, regarding its products containing Griffith’s preservatives. Complaint at
¶ 22; Answer at ¶ 22. The Complaint, however, is silent about the delivery date of
Griffith’s products. Thus, on this record, I cannot conclude that Griffith’s statute of
limitations defense fails as a matter of law. I find that Griffith has adequately stated its
sixth affirmative defense, as required by Rule 8(c), to give Liguria sufficient notice of
the nature of the defense, and that there are questions of fact that might allow the defense
to succeed. Accordingly, the statute of limitations/repose defense will not be stricken
and this portion of Liguria’s motion is also denied.
4.

Seventh and eighth affirmative defenses-preemption by federal
law/compliance with applicable statutes

Liguria next moves to strike Griffith’s seventh and eighth affirmative defenses.
Griffith’s alleges as its seventh affirmative defense that “Liguria’s claims against Griffith
may be barred in whole or in part and/or preempted by applicable federal law, with which

3

Section 554.2725 states in pertinent part:
A cause of action accrues when the breach occurs, regardless
of the aggrieved party's lack of knowledge of the breach. A
breach of warranty occurs when tender of delivery is made,
except that where a warranty explicitly extends to future
performance of the goods and discovery of the breach must
await the time of such performance, the cause of action
accrues when the breach is or should have been discovered.

IOWA CODE § 554.2725(2).
10

Griffith complied.”

Griffith’s Answer at 14.

Similarly, for its eighth affirmative

defense, Griffith alleges that it “complied with all relevant applicable federal and state
statutes and administrative regulations existing at the time of the events at issue in
Liguria’s Complaint.” Griffith’s Answer at 14. Liguria contends that these defenses are
conclusory and inadequately pled. Specifically, Liguria argues that Griffith’s preemption
affirmative defense is insufficient because Griffith does not allege why Liguria’s state
law claims are preempted nor does Griffith identify what “federal law” it believes
preempts Iowa common law in this area. Griffith does not respond to Liguria’s arguments
concerning these affirmative defenses.
Preemption is an affirmative defense that must be pled.

Sherman v. Winco

Fireworks, Inc., 532 F.3d 709, 714–715 (8th Cir. 2008). Griffith has not provided
sufficient notice for either its seventh or eighth affirmative defenses because its Answer
does not identify the applicable state or federal statutes or provide any factual basis for
why Liguria’s common law claims are preempted. See Moore v. BASF Corp., No. 111001, 2012 WL 4794319, at *3 (E.D. La. Oct. 09, 2012) (striking statutory preemption
defense where defendant failed to identify in its answer the federal or state law); Lemery
v. Duroso, No. 4:09CV00167, 2009 WL 1684692, at *3 (E.D. Mo. June 16, 2009)
(striking preemption defense because defendants could not rely on “their legal conclusion
that Plaintiffs’ cause of action is preempted” where defendant failed to allege it was
preempted by federal statute). I, therefore, strike, with leave to amend, Griffith’s seventh
and eighth affirmative defenses.
5.

Ninth affirmative defense-failure to join indispensable parties

Griffith’s ninth affirmative defense asserts that Liguria has failed to join
indispensable parties.

Liguria argues Griffith has failed to not only identify the

indispensable parties, but the role played by such parties which would give rise to their

11

being indispensable to this litigation.

Griffith, again, fails to respond to Liguria’s

arguments regarding this affirmative defense.
Rule 19 defines a “required party” as a person in whose “absence, the court cannot
accord complete relief among existing parties” or a person whose own interests would be
adversely affected if he were not joined. FED. R. CIV. P. 19(a)(1). In this defense,
Griffith fails to provide any details regarding the identity or role of the alleged
indispensable party or parties. As such, Griffith’s pleading of this defense is insufficient
to provide sufficient notice. See J&J Sports Prods., Inc. v. Ramirez Bernal, No. 1:12cv-01512-AWI-SMS, 2014 WL 2042120, at *4 (E.D. Cal. May 16, 2014) (striking
affirmative defense of failure to join a “necessary and indispensable party” where answer
failed to provide “any factual basis” for the defense); Joe Hand Promotions, Inc. v.
Havens, No. 2:13-cv-0093, 2013 WL 3876176, at *3 (S.D. Ohio July 26, 2013) (striking
affirmative defense of failure to join indispensable parties where defendant “fail[ed] to
identify any alleged indispensable party and utterly fail[ed] to explain why any such party
cannot be joined.”); Vogel v. Linden Optometry APC, 2013 WL 1831686, at * 4 (C.D.
Cal. Apr. 30, 2013) (striking affirmative defense of failure to join indispensable parties
because “this defense fails to allege any factual content whatsoever to provide Plaintiff
fair notice.”); Security People, Inc. v. Classic Woodworking, LLC, 2005 WL 645592,
at *5 (N.D. Cal. Mar. 4, 2005) (striking affirmative defense of failure to join
indispensable parties where defense “fails to allege the name of any party who must be
joined.”). Therefore, I also strike, with leave to amend, Griffith’s ninth affirmative
defense.
III.

CONCLUSION

For the reasons discussed above, I grant in part and deny in part plaintiff Liguria’s
motion to strike.

Specifically, I deny Liguria’s motion with respect to defendant
12

Griffith’s first, second, and fifth affirmative defenses. I strike with leave to amend
Griffith’s seventh, eighth, and ninth affirmative defenses. If Griffith wishes to file an
amended answer that is consistent with this order, it must do so no later than December
10, 2014.
IT IS SO ORDERED.
DATED this 13th day of November, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

13