Minge et al v. TECT Corporation et al

Filing 162

MEMORANDUM AND ORDER granting in part and denying in part 95 Motion to Deem Allegations Admitted and to Strike Affirmative Defenses. See Order for details. Signed by District Judge Monti L. Belot on 6/21/2011. (rs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA
EX. REL DONALD MINGE
and DAVID KIEHL
and
DONALD MINGE AND
DAVID KIEHL,
individually
Plaintiff,
v.
TECT AEROSPACE, INC.,
AND HAWKER BEECHCRAFT
CORPORATION.
Defendant.

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CIVIL ACTION
No.

07-1212-MLB

MEMORANDUM AND ORDER
Before the court are the following:
1.

Plaintiffs’ Motion to Deem Allegations Admitted by the
Defendants and to Strike Affirmative Defenses (Doc. 95);

2.

Defendant TECT’s Response to plaintiffs’ motion (Doc. 96)
and;

3.

Defendant Hawker Beechcraft Corporation’s Response to
plaintiffs’ motion. (Doc. 97).

Also before the court are:
4.

Plaintiffs’ fourth Amended Complaint (Doc. 70-1)

5.

Defendant TECT’s Answer to plaintiff’s fourth Amended
Complaint (Doc. 90) and;

6.

Defendant Hawker Beechcraft Corporation’s Answer to
plaintiffs’ fourth Amended Complaint (Doc. 92).

I.

FACTS AND PROCEDURAL HISTORY
This case comes before the court on plaintiffs’ motion to Deem

Allegations Admitted and to Strike Affirmative Defenses. On August 2,
2010 this court granted plaintiffs’ motion to amend their complaint.
Defendants TECT and Hawker Beechcraft (HBC) each filed their Answers
to the fourth Amended Complaint on September 29, 2010. Plaintiffs
filed this motion on October 5, 2010 claiming that defendants’ answers
to the fourth Amended Complaint are deficient, and their affirmative
defenses are not plead correctly. Defendants both filed responses to
this motion on October 19, 2010.

Defendants ask that the court find

for the defendants, or in the alternative, grant the defendants leave
to cure their Answers to the fourth Amended Complaint.
II.

DISCUSSION
Plaintiffs claim that the defendants’ Answers to the fourth

Amended Complaint are deficient in three ways: 1) 36 of TECT’s answers
and 3 of HBC’s answers improperly assert “lack of knowledge or
information” when the information was easily discoverable; 2) 114 of
TECT’s answers and 158 of HBC’s answers state “the document speaks for
itself”; and 3) 193 of TECT’s answers and 47 of HBC’s answers deny
allegations using the expression “denied as phrased”. Plaintiffs argue
that these responses are not proper denials under Fed. R. Civ. P. Rule
8, and move to have them admitted pursuant to Rule 8(b)(6). Further,
plaintiffs move to strike all of defendants’ affirmative defenses
stated in their Answers to the fourth Amended Complaint.
1. Plaintiffs’ “Lack of Knowledge and Information” Argument
In defendant TECT and defendant HBC’s Answers to the plaintiffs’
fourth Amended Complaint, defendants deny certain allegations due to
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a lack of knowledge. Plaintiffs argue that 36 of TECT’s denials and 3
of HBC’s denials should be deemed admitted because the defendants
could have discovered this information by speaking with their agents
and

corporate

predecessors.

This

argument

is

without

merit,

as

illustrated by plaintiffs’ failure to cite any primary authorities
supporting this argument. Furthermore, this court knows no law in the
Tenth Circuit that would support plaintiffs’ argument. “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). “To require Defendants to do
more at this stage, or to interpret any of their denials as unstated
admissions, would be to run afoul of the requirement that the Court
construe the pleadings in the interest of justice as required by Rule
8(e)”. Sykes v. Cigna Life Ins. Co., 2010 WL 3324261, at *3(N.D. Cal.
2010).
2. Plaintiffs’ “Document Speaks for Itself” Argument
Plaintiffs take issue with defendants' inclusion at several
points in the Answers to the fourth Amended Complaint that “the
document speaks for itself”, which violates Fed. R. Civ. P. 5(b)(2)’s
requirement that the response “fairly responds to the substance of the
allegations. . .” Plaintiffs’ argument is without merit, and lacks
support

in

case

law.

Although

plaintiffs

are

correct

that

this

response, standing alone, would not meet the requirements of Rule 8,
defendants also made admissions and denials as they deemed necessary
given the substance and extent of the allegations in each paragraph.
Furthermore, with respect to requests for admissions, the District
Court in Kansas held that “. . .a document speaks for itself, and the
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court can see no purpose in submitting requests for admission about
what is or is not said in a document.” Mitchell v. Yeutter, 1993 WL
139218, at *1 (D. Kan. 1993). Defendants fairly responded to the
substance of the allegations.
3. Plaintiffs’ “Denied as Phrased” Argument
Plaintiffs argue that defendants’ inclusion of the response
“denied as phrased” in their Answers to the fourth Amended Complaint
violates Fed. R. Civ. P. 8(b)(2) and 8(b)(4). Rule 8(b)(2) states that
a denial must fairly respond to the “substance” of the complaint, and
Rule 8(b)(4) states that a party that intends in good faith to deny
only part of an allegation must admit the part that is true and deny
the rest. Defendants have failed to follow these rules. Denying an
allegation “as phrased” does not speak to the “substance” of the
complaint, but rather to the form of the complaint. This leaves both
plaintiffs and this court confused as to what exactly defendants are
denying. For example, defendant TECT denies “as phrased” allegation 24
of

plaintiffs’

fourth

Amended

Complaint

which

states

“[A]t

all

relevant times, with respect to the allegations below concerning the
JPATS and King Air programs, each Defendant was the authorized agent
of each other Defendant”. It is not clear what defendants are denying,
but it is clear that a denial “as phrased” does not fairly respond to
the substance of the complaint.
Furthermore, denying an allegation “as phrased”, rather than
using a general denial, implies that defendants would admit part of
the allegation. Defendants, in denying allegations “as phrased”, have
failed to specifically designate the part of the allegation they wish

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to admit, which does not conform to Rule 8(b)(4).
4. Plaintiff’s Motion to Strike Affirmative Defenses
Finally,

plaintiffs

move

the

court

to

strike

defendants’

affirmative defenses pursuant to Rule 12(f) because they do not line
up with the Supreme Court’s decision in Twombly requiring that a
complaint must contain enough allegations of fact to state a claim to
relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007). Plaintiffs argue that the
“plausible on its face” standard applies to affirmative defenses.
District Courts in Kansas are split on this matter. See e.g., Hayne v.
Green Ford Sales, Inc., 263 F.R.D. 647, 649-51 (D. Kan. 2009) (holding
that

the

heightened

pleading

standard

in

Twombly

applies

to

affirmative defenses); but see, United States ex rel. Smith v. Boeing
Co., No. 05-cv-1073-WEB, slip op. at 4-5 (D. Kan. 2009)(holding that
Twombly does not apply to affirmative defenses and the key to pleading
affirmative defenses is fair notice).
This court will not deviate from the traditional standard of
review with respect to

Rule 12(f) motions. “Rule 12(f) motions are

a generally disfavored, drastic remedy.” Roderick Revocable Living
Trust v. XTO Energy, Inc., 2009 WL 603641, at *2 (D. Kan. 2009). “The
key to pleading an affirmative defense is to give the plaintiff fair
notice of the defense.” Siuda v. Robertson Transformer Co., 1992 WL
79331, *3 (D. Kan. 1992). “A defense is considered insufficient if it
cannot succeed, as a matter of law, under any circumstances.” Wilhelm
v. TLC Lawn Care, Inc., 2008 WL 474265, *2 (D. Kan. 2008). Finally, a
Rule 12(f) motion may only be granted when the plaintiff has shown

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prejudice. Id. Here, plaintiffs have failed to assert that defendants
have not given them “fair notice” as to what their potential defenses
will be, or that they are in any way prejudiced by the conduct of
defendants. For these reasons alone, plaintiffs’ motion to strike is
without merit.
III.

Conclusion
Plaintiffs’ Motion to Strike Affirmative Defenses is denied.

Plaintiffs’ Motion to Deem Allegations Admitted is granted in part,
and denied in part. Deeming allegations admitted is an extreme remedy,
therefore, Defendants have 14 days to file amended answers that
conform with this order and Rule 8 , or those answers will be deemed
admitted pursuant to Fed. R. Civ. P. Rule 12(f).
A motion for reconsideration of this order is not encouraged.
The standards governing motions to reconsider are well established.
A motion to reconsider is appropriate where the court has obviously
misapprehended a party's position or the facts or applicable law, or
where the party produces new evidence that could not have been
obtained through the exercise of reasonable diligence. Revisiting the
issues already addressed is not the purpose of a motion to reconsider
and advancing new arguments or supporting facts which were otherwise
available for presentation when the original motion was briefed or
argued is inappropriate.
1992).

Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan.

Any such motion shall not exceed three pages and shall

strictly comply with the standards enunciated by this court in Comeau.
The response to any motion for reconsideration shall not exceed three
pages.

No reply shall be filed.

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IT IS SO ORDERED.
Dated this

21st

day of June 2011, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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