Brewer v. Holland et al

Filing 76

ORDER: For the reasons explained in the accompanying memorandum, the Court grants Plaintiff's motion to strike (DN 28 ) as to Defendants' fourth affirmative defense but otherwise denies it; denies the motion to intervene (DN 29 ); and grants Defendants' motion to file excess pages (DN 72 ). cc: Plaintiff, pro se; Counsel of Record; Yvette K. Allen (MNM)

Case 3:16-cv-00014-BJB-CHL Document 76 Filed 03/01/22 Page 1 of 8 PageID #: 779

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CHEROSCO L. BREWER
v.

PLAINTIFF
CIVIL ACTION NO. 3:16-cv-14-BJB

HOLLAND #7949 et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
The Court considers several pending motions in this case: pro se Plaintiff Cherosco L.
Brewer’s motion to strike (DN 28); a motion to intervene (DN 29) filed by Yvette K. Allen; and
Defendants’ motion for leave to file a memorandum of law in support of their motion for
summary judgment in excess of the page limitation (DN 72).
MOTION TO STRIKE
Plaintiff filed a motion to strike Defendants’ answer to the complaint for lack of “fair
notice” under Fed. R. Civ. P. 8. DN 28. He argues that Defendants’ affirmative defenses “fail
to set forth any basic facts which entitle defendants to the relief requested” and that Defendants
“have made general denials and labeled these general denials as affirmative defenses.” Id. at 3.
The Answer sets forth four affirmative defenses: (1) “The Complaint fails to state a claim
for which relief can be granted”; (2) “Defendants are entitled to qualified immunity”; (3) “Some
or all of Plaintiff’s claims are barred by the statute of limitations”; and (4) “Defendants expressly
reserve the right to file further pleadings and to assert additional affirmative defenses as the
proof develops.” DN 23 at 2.
In response to Plaintiff’s motion (DN 30), Defendants assert that their answer meets Fed.
R. Civ. P. 8(b)(1)(A) standards. They also point out that they filed an answer, not a motion to
dismiss, and additional argument was not necessary. DN 30 at 1.

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Rule 12(f) of the Federal Rules of Civil Procedure allows a court to 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 disfavored, Hemlock Semiconductor
Operations, LLC v. SolarWorld Indus. Sachsen GmbH, 867 F.3d 692, 697 (6th Cir. 2017), and
the Court has considerable discretion when deciding whether to strike pursuant to Rule 12(f),
Thompson v. Hartford Life & Accident Ins. Co., 270 F.R.D. 277, 279 (W.D. Ky. 2010).
Rules 8(b) and 8(c) govern defenses and affirmative defenses, and require only that a
party “state in short and plain terms its defenses to each claim asserted against it,” Fed. R. Civ. P.
8(b)(1)(A), and “affirmatively state any avoidance or affirmative defense,” Fed. R. Civ. P.
8(c)(1). This language differs markedly from the language of Rule 8(a)(2), which governs a
“pleading that states a claim for relief” and which requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” See E.E.O.C. v. Joe Ryan Enters., Inc., 281
F.R.D. 660, 663 (M.D. Ala. 2012) (“If the drafters of Rule 8 intended for defendants to plead
affirmative defenses with the factual specificity required of complaints, they would have
included the same language requiring a ‘showing’ of ‘entitlement to relief’ in the subsections
governing answers and affirmative defenses.”) (brackets omitted).
The Sixth Circuit Court of Appeals has held that an affirmative defense need only be
“‘pleaded in general terms and will be held to be sufficient . . . as long as it gives plaintiff fair
notice of the nature of the defense.’” Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir.
2006) (quoting 5 Wright & Miller, Federal Practice and Procedure, § 1274) (ellipsis in
Lawrence). In the absence of controlling guidance as to whether the heightened pleading
standard promulgated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), should apply to affirmative defenses, this

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Court has continued to apply the fair-notice standard to the pleading of defenses. See, e.g.,
Maker’s Mark Distillery, Inc. v. Spalding Grp., Inc., No. 319-CV-00014-GNS-LLK, 2020 WL
1430610, at *2 (W.D. Ky. Mar. 23, 2020) (noting that the Sixth Circuit has not addressed what
impact if any the heightened pleading standard in Twombly and Iqbal has on affirmative defenses
and using the fair notice standard to analyze the defendants’ affirmative defenses); Holley
Performance Prods., Inc. v. Quick Fuel Tech., Inc., No. 1:07-CV00185-JHM, 2011 WL
3159177, at *2 (W.D. Ky. July 26, 2011) (declining to adopt the heightened Twombly and Iqbal
pleading standard for the pleading of defenses). As such, the fair-notice standard will be used to
analyze Defendants’ affirmative defenses.
Defendants’ first affirmative defense, i.e., failure to state a claim, “[is] not [an]
affirmative defense[] at all,” although “mistakenly categorizing a negative defense as an
affirmative defense is not grounds to strike the defense from the Answer.” Whiting v. Albek, No.
ED CV 19-1542-DMG, 2020 WL 7382777, at *4 (C.D. Cal. Oct. 30, 2020) (citing Kohler v.
Islands Restaurants, LP, 280 F.R.D. 560, 567 (S.D. Cal. 2012)). Plaintiff objects to it on the
basis that it is “bare bones” and uncorroborated by facts or law. DN 28 at 1. “There is no
requirement under Rule 8(c) that a defendant plead any facts at all.” Serby v. First Alert, Inc.,
934 F. Supp. 2d 506, 516 (E.D.N.Y. 2013). “As numerous federal courts have held, an
affirmative defense may be pleaded in general terms and will be held to be sufficient, and
therefore invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the
nature of the defense.” 5 Wright & Miller, Federal Practice and Procedure Civ. § 1274
(footnotes omitted).

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Plaintiff objects to the second affirmative defense “Defendants are entitled to qualified
immunity” (DN 23 at 2) — because he says Defendants did not explain “why and how they are
entitled to qualified immunity.” DN 28 at 2.
Because Defendants have adequately stated this affirmative defense, no further
explanation is required. See, e.g., Tardif v. City of New York, 302 F.R.D. 31, 36 (S.D.N.Y. 2014)
similarly worded answer “adequately stated the qualified immunity defense, as required by Rule
8(c), to give Plaintiff fair notice of the nature of the defense, and that there are questions of fact
and law that might allow the defense to succeed”).
As to Plaintiff’s third affirmative defense — “[s]ome or all of Plaintiff’s claims are
barred by the statute of limitations” (DN 23 at 2) — a court in this Circuit has held this exact
wording provided fair and adequate notice. See Fullen v. City of Columbus, No. 2:08-CV-263,
2008 WL 4762763, at *2 (S.D. Ohio Oct. 24, 2008) (affirmative defense stating that “[s]ome or
all of Plaintiff’s claims are beyond the statute of limitations” provided the plaintiff with fair and
adequate notice).
Moreover, in evaluating motions to strike, courts consider whether the moving party has
identified any prejudice. See, e.g., Whiting, 2020 WL 7382777 at *4 (“Furthermore, Plaintiff has
not specifically identified any prejudice arising from their inclusion in the Answer.”); KilgoreWilson v. Home Depot, U.S.A., No. 2:11-CV-02601-JPM, 2012 WL 4062695, at *3 (W.D. Tenn.
Apr. 20, 2012) (“In addition, Plaintiff has not alleged how she is prejudiced by the inclusion of
these defenses, and the Court is not aware of any such prejudice.”), report and recommendation
adopted, No. 2:11-CV-02601-JTF, 2012 WL 4062663 (W.D. Tenn. Sept. 14, 2012). Here,
Plaintiff has not alleged that he is prejudiced by any of these affirmative defenses. The Court
will deny Plaintiff’s motion to strike these three affirmative defenses.

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Plaintiff objects to what Defendants styled as their fourth affirmative defense — that
Defendants “expressly reserve the right to file further pleadings and to assert additional
affirmative defenses as the proof develops,” (DN 23 at 2) — as not being a proper affirmative
defense. Defendants, Plaintiff explains, may file a motion for leave to amend as the case
develops. DN 28 at 3. Plaintiff is right. Rule 8(c) does not list a reservation of rights as an
affirmative defense, and describing a reservation as an assertion of rights doesn’t make sense.
A“reservation of right seeking to preserve unknown affirmative defenses subverts Federal Rule
of Procedure 15, which allows a party to move for leave to amend a responsive pleading.”
Paducah River Painting, Inc. v. McNational Inc., No. 5:11-CV-00135-R, 2011 WL 5525938, at
*5 (W.D. Ky. Nov. 14, 2011). Defendants may move to assert other affirmative defenses by
seeking leave to amend their answer should the need arise. Id. The Court will strike
Defendants’ fourth affirmative defense.
The Court GRANTS Plaintiff’s motion to strike Defendants’ fourth affirmative defense
but otherwise DENIES Plaintiff’s motion to strike.
MOTION TO INTERVENE
In her motion, Yvette Allen “request[s] permission” to intervene in this case pursuant to
Rule 24 of the Federal Rules of Civil Procedure. DN 29 at 1. She asserts that on November 12,
2015, Defendant Holland “was the direct or proximate cause of her automobile being unlawfully
impounded.”1 Id. She states that she filed a state court action, No. 15-c-12761, seeking the
immediate release of her vehicle. According to Ms. Allen, Defendant Holland asserted qualified
immunity in that action. Id. She states that she requested but did not receive a hearing in state
court, and asserts that her claims against Defendant Holland arise from the same facts as

1

Although Ms. Allen does not explain this, the Court notes that this date is one of four dates on which Plaintiff’s
complaint alleges that he was subjected to a traffic stop. See DN 1 at 5.

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Plaintiff’s in this action. She further asserts that “the efficient administration of justice should
permit her to intervene . . . against Defendant Holland, or any individual whom is responsible for
the unlawful hold[.]” Id. at 2.
Permissive intervention is governed by Fed. R. Civ. P. 24(b), which provides in pertinent
part:
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to intervene
who: . . .
(B) has a claim or defense that shares with the main action a common
question of law or fact.
***
(3) Delay or Prejudice. In exercising its discretion, the court must consider
whether the intervention will unduly delay or prejudice the adjudication of
the original parties’ rights.
Fed. R. Civ. P. 24(b)(1) and (3).
Ms. Allen fails to explain how her state-court claims against Defendant Holland arise
from the same set of facts as Plaintiff’s. Although she states in her motion that she attaches state
court documents, she does not. Nor does she explain what her claims are. Ms. Allen appears to
want the return of her automobile, but she does not state whether she brings claims that the
automobile has not been returned as a result of a violation of constitutional or federal law or of a
state law or procedural rule. “This failure to identify a truly common question is enough to
justify denying permissive intervention.” Owners Ins. Co. v. Reynolds Concrete Pumping, LLC,
No. 3:21-CV-356-BJB, 2022 WL 451354, at *2 (W.D. Ky. Feb. 14, 2022).
The Court additionally finds that considerations of delay and prejudice weigh against Ms.
Allen’s motion. She did not file her motion to intervene until approximately a year and a half
after this lawsuit was brought. And in asserting that “the efficient administration of justice
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should permit her to intervene . . . against Defendant Holland, or any individual whom is
responsible for the unlawful hold” (emphasis added), she holds open the possibility that adding
an entirely new Defendant may be necessary for her to obtain the relief she seeks. Any further
delay would be detrimental to all parties. This case is over six years old. It is at the dispositivemotion stage, and Defendants have prepared a motion for summary judgment with a lengthy
memorandum in support (DN 72). Addressing Ms. Allen’s unspecified claim for which
Defendant Holland may not even be the correct Defendant would delay this case further and
unduly complicate the proceedings at this late stage in the case’s development.
Finally, the Court notes that all the mail the Court has sent Ms. Allen has been returned
as undeliverable (DNs 39, 50, 69, and 75). Ms. Allen has not advised the Court of her new
address or made inquiries regarding the status of her motion. Allowing Ms. Allen to intervene at
this point in the litigation would raise the likelihood that neither the Court nor the parties will be
able to serve documents and filings on her.
For all of these reasons, the Court in its discretion DENIES the motion to intervene
(DN 29).
DEFENDANTS’ MOTION TO FILE EXCESS PAGES
Defendants ask the Court for leave to file their memorandum of law in support of their
motion for summary judgment which contains nine pages more than the twenty-five page limit
set forth in Local Rule 7.1(d). Defendants explain that the additional pages are necessary
because this case involves a complaint and two amended complaints, with claims related to four
traffic stops, two searches, and multiple Defendants.

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Plaintiff does not oppose the motion. The Court GRANTS Defendants’ motion (DN 72).
Date:

March 1, 2022

cc:

Plaintiff, pro se
Counsel of record
Yvette K. Allen
B213.009

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