Moore et al v. BASF Corporation et al

Filing 266

ORDER DENYING plaintiffs' motion to strike 130 defendant's answerbut GRANTING plaintiffs' motion to strike the affirmative defensesof failure to preserve evidence, estoppel and waiver, uncleanhands, statutory preemption, and any affirmative defenses underthe Louisiana Products Liability Act that defendant has notspecifically identified. Signed by Chief Judge Sarah S. Vance on 10/9/12. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRAIG MOORE, ET AL.

CIVIL ACTION

VERSUS

NO: 11-1001

BASF CORPORATION, ET AL.

SECTION: R

ORDER AND REASONS
Before the Court is plaintiffs’ motion to strike defendant
Valspar Corporation’s untimely answer to plaintiffs’ complaint.
The Court DENIES plaintiffs’ motion to strike defendant’s answer
but GRANTS plaintiffs’ motion to strike the affirmative defenses
of failure to preserve evidence, estoppel and waiver, unclean
hands, statutory preemption, and any affirmative defenses under
the Louisiana Products Liability Act that defendant has not
specifically identified.
I.

BACKGROUND
Plaintiffs’ claims arise from Craig Moore’s alleged exposure

to products containing benzene when he worked as a painter from
1981 to 2005.

On April 28, 2011, plaintiffs filed a complaint

against several paint manufacturers, including the Valspar
Corporation.1 After filing a motion for an extension of time to
answer, Valspar filed a motion to dismiss on June 14, 2011. The
Court denied the motion to dismiss on November 21, 2011. Although
its answer was then due December 5, 2011, Valspar did not file
1

R. Doc. 1.

its answer until July 30, 2012, and its answer included forty
affirmative defenses. Plaintiffs moved to strike Valspar’s
answer, on the grounds that defendant’s answer was untimely and
many of the affirmative defenses were improperly pleaded.2
Valspar then submitted to the Court a motion pursuant to Federal
Rules of Civil Procedure 6(b), seeking an extension of the time
to answer.3 Magistrate Judge Wilkinson granted the extension,
finding that Valspar had established excusable neglect by its
counsel and good cause for the extension.4
II.

LEGAL STANDARD
A. Motions to Strike
Federal Rule of Civil Procedure 12(f) allows the court to

strike “from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.
R. Civ. P. 12 (f). A motion to strike under Rule 12(f) “is a
drastic remedy to be resorted to only when required for the
purposes of justice.” Augustus v. Bd. of Pub. Instruction of
Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962); see also
Kaiser Aluminum & Chem. Sales, Inc. V. Avondale Shipyards, Inc.,
677 F.2d 1045, 1057 (5th Cir. 1982)(“motions to strike a defense
are generally disfavored”); Synergy Mgmt., LLC v. Lego Juris A/S,

2

R. Doc. 130.

3

R. Doc. 185.

4

R. Doc. 245.
2

No. 07-5892, 2008 WL 4758634, at *1 (E.D La. Oct. 24, 2008)
(“motions to strike made under Rule 12(f) are viewed with
disfavor by the federal courts, and are infrequently granted.”).
Even when motions to strike are well-founded, they are not to be
granted “in the absence of a showing of prejudice to the moving
party.” Abene v. Jaybar, 802 F. Supp. 2d 716, 723 (E.D. La. 2011)
(internal citation omitted).
B. Pleading Standard for Affirmative Defenses
Affirmative defenses are pleadings governed by Rule 8 of the
Federal Rules of Civil Procedure. A defendant is required to
“state in short and plain terms its defenses to each claim
asserted against it” and “affirmatively state any avoidance or
affirmative defense.” Fed. R. Civ. P. 8(b)(1)(A), 8(c)(1). In
Woodfield v. Bowman, the Fifth Circuit held that affirmative
defenses are subject to the same pleading requirements as a
complaint and articulated a “fair notice” standard for pleading
affirmative defenses. 193 F.3d 354, 362 (5th Cir. 1999). Under
this standard, a defendant is required to plead an affirmative
defense “with enough specificity or factual particularity to give
the plaintiff ‘fair notice’ of the defense that is being
advanced.” Id. (citation omitted).
III. DISCUSSION
The Court denies plaintiffs’ request that defendant’s entire

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answer be stricken, because after plaintiffs filed this motion,
Magistrate Judge Wilkinson found that Valspar established good
cause for an extension of the deadline to file an answer.5
Plaintiffs also make specific objections to several of
defendant’s affirmative defenses, asserting that the defenses are
not sufficiently articulated to provide fair notice. Defendant
contends that the same affirmative defenses were posed by other
defendants, without objection from plaintiffs. That argument does
not cure any deficiencies in defendant’s answer, deficiencies
that are all the more prejudicial by virtue of the lateness of
defendant’s filing. Therefore, the Court will examine whether
Valspar’s contested affirmative defenses provided plaintiffs with
fair notice.
A.

Failure to Preserve Evidence

Valspar asserts as its twentieth affirmative defense
plaintiffs’ failure to preserve evidence “relevant to this
action.”6 Putting aside whether this allegation even amounts to
an affirmative defense, it suffers from a lack of particularity.
In a case of this complexity, in which discovery has been
conducted for over a year, such a lack of factual specificity as
to the nature of the evidence in issue and the circumstances
under which plaintiffs failed to present it leaves plaintiffs

5

R. Doc. 245.

6

R. Doc. 104.
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without fair notice of the substance of the defense. Woodfield,
193 F.3d at 362. The Court thus strikes this defense.
B.

Estoppel and Waiver

As its twenty-third affirmative defense, Valspar states,
“Valspar alleges that Plaintiffs’ claims are barred by the
applicable principles of estoppel and waiver.”7 Defendant does
not indicate which of plaintiffs’ claims are barred by estoppel
or waiver or the facts giving rise to the waiver or estoppel.
The Court therefore finds that this defense fails to provide fair
notice and strikes it from the answer. See Woodfield. 193 F.3d at
362 (“baldly ‘naming’ the broad affirmative defenses . . . falls
well short of the minimum particulars needed to identify the
affirmative defense”); see also Cosmetic Warriors Ltd. v. Lush
Boutique, L.L.C., No. 09-6381, 2010 WL 481229, at *2 (E.D. La.
Feb. 1, 2010) (defendant’s assertion that “Plaintiff’s claims are
barred by the doctrine of equitable estoppel” did not provide
plaintiff with fair notice).
C.

Unclean Hands

Valspar asserts as its twenty-fourth affirmative defense the
doctrine of unclean hands, stating only that “Valspar alleges
that Plaintiffs’ claims are barred by the doctrine of unclean
hands.”8 Without any accompanying facts or indication of the
7

Id.

8

R. Doc. 104.
5

particular claims barred, Valspar has not provided plaintiffs
with fair notice of the defense that will be raised at trial.
See, e.g., Software Publishers Ass’n v. Scott & Scott, LLP, No.
306CV0949G, 2007 WL 2325585, at *2 (N.D. Tex. Aug 15, 2007)
(striking affirmative defense stating that plaintiff’s claims
were barred due to the “plaintiff’s unclean hands”).
D.

Statutory Preemption

Defendant’s twenty-fifth affirmative defense states,
“Valspar alleges that Plaintiffs’ claims may be preempted in
whole or in part by federal and/or state statutes and/or
regulations.”9 Defendant has not met the fair notice test under
Woodfield, because its answer does not identify the applicable
state or federal statutes or provide a factual basis for the
application of any legal provision. See Schlosser v. Metropolitan
Pro. and Cas. Ins. Co., No. 12-1301, 2012 WL 3879529, at *3 (E.D.
La. Sept. 6, 2012) (“The general reference to ‘statute’ . . .
could support a host of reasons to deny relief.”)(internal
citation omitted). The Court therefore strikes the defense of
statutory preemption.
E.

Speculative Damages

Defendant’s twenty-sixth affirmative defense states that
“Plaintiffs are barred from any recovery for damages, injuries
and losses alleged in the Complaint as such damages are
9

Id.
6

impermissibly remote and speculative.”10 Despite the lack of
detail, the Court finds that the basis for Valspar’s defense as
to speculative damages is self-explanatory, and its scope is
limited by the damages alleged in plaintiffs’ complaint. See,
e.g., Voeks v. Wal-Mart Stores, Inc., 07-C-0030, 2008 WL 89434
(E.D. Wis. Jan. 7, 2008)(denying motion to strike defense of
speculative damages although defense was pleaded with little
detail). Therefore, the Court will not strike the defense of
speculative damages from defendant’s answer.
F.

LPLA Defenses

Defendant asserts as its thirty-eighth defense all defenses
provided in the LPLA, or if the Court finds that plaintiffs’
claims are governed by law in existence before the LPLA was
enacted, all affirmative defenses set forth in the LPLA that were
recognized under prior law.11 Defendant provides no additional
detail as to the defenses it will bring or the factual basis for
those defenses. The Court finds that such a vague assertion does
not provide plaintiffs with fair notice and does not constitute
the type of affirmative statement required by Federal Rule of
Civil Procedure 8. Therefore, the Court limits the affirmative
defenses that defendant may raise under the LPLA to the
affirmative defenses specifically identified in defendant’s
10

R. Doc. 140.

11

R. Doc. 104.
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answer.
G.

Unknown

As its fortieth affirmative defense, defendant reserves the
right to assert additional affirmative defenses should discovery
indicate that the defenses are appropriate.12 Such a reservation
clearly does not provide fair notice of a defense, but it also is
not an affirmative defense, which must be specifically
identified. See Fed. R. Civ. P. 8(b)(1)(A), 8(c)(1). Therefore,
although the Court will not strike the defense as an improperly
pleaded affirmative defense, the Court notes that this catch-all
defense does not permit the defendant to present affirmative
defenses that were not identified in its answer. See, e.g., Solis
v. Bruister, No. 4:10CV77, 2012 WL 776028, at *7 (S.D. Miss. Mar.
8, 2012) (finding it unnecessary to strike defendants’
reservation of the right to assert unstated defenses as an
improperly pleaded affirmative defense, because defendants must
identify any additional affirmative defenses).
IV.

CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs’

motion to strike defendant’s answer in its entirety but GRANTS
plaintiffs’ motion to strike the affirmative defenses of failure
to preserve evidence, estoppel and waiver, unclean hands,

12

Id.
8

statutory preemption, and LPLA defenses, to the extent that the
defenses under the LPLA are not raised elsewhere in the answer.

New Orleans, Louisiana, this 9th day of October, 2012.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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