Schlosser v. Metropolitan Property & Casualty Insurance Company
Filing
28
ORDER granting in part and denying in part 14 Motion to Strike. Defendant has 14 days to amend its answer in accordance with this order. Signed by Chief Judge Sarah S. Vance on 9/6/12. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY SCHLOSSER
CIVIL ACTION
VERSUS
NO: 12-1301
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY
SECTION: R
ORDER AND REASONS
Before the Court is plaintiff Anthony Schlosser’s motion to
strike defendant Metropolitan Property and Casualty Insurance
Company’s first, second, and fourth affirmative defenses.1 For
the following reasons, plaintiff’s motion is Granted in part and
Denied in part.
I.
BACKGROUND
This case arises out of a car accident that occurred on
February 8, 2011. On that date, a car driven by plaintiff,
Anthony Schlosser, collided with a car driven by Gilberto
Contreras. Plaintiff alleges that Contreras rapidly backed into
his car while plaintiff was turning into the parking lot of
Regions Bank in Kenner, Louisiana. Plaintiff settled his case
against Contreras and Contreras’s insurer for $15,000, the
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maximum limit of Contreras’s insurance policy.
Plaintiff then brought this suit against defendant,
Metropolitan Property and Casualty Insurance Company, plaintiff’s
uninsured and underinsured motorist insurer. Plaintiff alleges
that defendant has failed to make payments according to its
insurance policy.2 Defendant answered the complaint and asserted
four affirmative defenses.3 Plaintiff now moves to strike
defendant’s first, second, and fourth affirmative defenses.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,
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R. Doc. 8.
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No. 07-5892, 2008 U.S. Dist. LEXIS 86471, 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.”). A motion to strike should be granted only when “the
allegations are prejudicial to the defendant or immaterial to the
lawsuit.” Johnson v. Harvey, No. 96-3438, 1998 U.S. Dist. LEXIS
14203, at *7 (E.D. La. Sept. 8, 1998) (citation omitted).
Immateriality is established by showing that the challenged
allegations “can have no possible bearing upon the subject matter
of the litigation.” Bayou Fleet P’ship v. St. Charles Parish, No.
10-1557, 2011 U.S. Dist. LEXIS 73867, at *16 (E.D. La. Jul. 8,
2011) (citations omitted). Disputed questions of fact cannot be
decided on a motion to strike. Gonzales v. State Farm Mut. Auto
Ins., No. 10-3041, 2011 WL 2607096, at *5 (E.D. La. July 1,
2011).
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
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requirements as a complaint and articulated a “fair notice”
standard for pleading affirmative defenses. Woodfield v. Bowman,
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).
It is clear that Fifth Circuit law requires an affirmative
defense to provide, at a minimum, enough specificity and factual
particularity to give the plaintiff “fair notice.” Woodfield, 193
F.3d at 362. What is less clear is whether an affirmative defense
must also meet the heightened plausibility standard of Bell
Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009). In Rogers v. McDorman, decided after Twombly
but before Iqbal, the Fifth Circuit relied on the Woodfield “fair
notice” standard when testing an affirmative defense against Rule
8(c). Rogers v. McDorman, 521 F.3d 381, 385-86 (5th Cir. 2008).
Although the Court cited Woodfield approvingly, the Court did not
specifically address whether Twombly’s heightened plausibility
requirements apply to pleading affirmative defenses.
While the Fifth Circuit has not addressed the issue, many
district courts have adopted the Twombly and Iqbal standard for
affirmative defenses. See, e.g., Vargas v. HWC Gen. Maint., No.
H-11-875, 2012 WL 948892, at *2 (S.D. Tex. Mar. 20, 2012);
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Herrera v. Utilimap Corp., No. H-11-3851, 2012 WL 3527065, at *2
(S.D. Tex. Aug. 14, 2012); United States v. Brink, No. C-10-243,
2011 WL 835828, at *2-3 (S.D. Tex. Mar. 4, 2011); Bradshaw v.
Hilco Receivables, LLC, 725 F. Supp. 2d 532, 536 (D. Md. 2010);
Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 650 & n.15 (D.
Kan. 2009)(citing cases applying the Twombly standard to
affirmative defenses).
Other district courts have declined to adopt the heightened
standard for affirmative defenses. See, e.g., Florida v. DLT
Girls, Inc., No. 4:11-cv-3624, 2012 WL 1565533, at *2 (S.D. Tex.
May 2, 2012); E.E.O.C. v. Courtesy Bldg. Servs., Inc., No. 3:10CV-1911-D, 2011 WL 208408, at *2-3 (N.D. Tex. Jan. 21, 2011);
Bayer Crop Science AG v. Dow Agro Sciences LLC, No. 10-1045
RMB/JS, 2011 WL 6934557, at *1-3 (D. Del. Dec. 30, 2011)
(providing nine justifications for declining to apply the Twombly
standard to affirmative defenses); Lane v. Page, 272 F.R.D. 581,
588-97 (D. N.M. 2011); Ameristar Fence Prod., Inc. V. Phx. Fence
Co., No. CV-10-299-PHX-DGC, 2010 WL 2803907, at *1 (D. Ariz. July
15, 2010); First Nat’l Ins. Co. of Am. v. Camps Servs., Ltd.,No.
08-cv-12805, 2009 WL 22861, at *2 (E.D. Mich. Jan. 5, 2009).
Because the challenged affirmative defenses in this case
either fail to meet the minimal fair notice standard under
Woodfield, or exceed the heightened plausibility standard under
Twombly, respectively, this Court need not address whether the
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heightened Twombly standard applies to affirmative defenses.
III. DISCUSSION
Plaintiff requests that this Court strike defendant’s first,
second, and fourth affirmative defenses.
A. First Affirmative Defense
Defendant’s first affirmative defense asserts “[t]he
plaintiff failed to state a claim upon which relief can be
granted.”5 This affirmative defense mimics form 30 in the
appendix to the Federal Rules of Civil Procedure and is therefore
sufficient as a matter of law. See Fed. R. Civ. P. 84, Form 30;
see also Harris v. USA Ins. Co., No: 11-201, 2011 U.S. Dist.
LEXIS 97250, at *7 (E.D. La. Aug. 30, 2011). Accordingly,
defendant’s assertion that Plaintiff has failed to state a claim
is sufficient. See also Lane, 272 F.R.D. at 597 (denying a motion
to strike an affirmative defense of failure to state a claim and
noting “[t]he reasons for this defense are better set forth in a
rule 12(b)(c) motion rather than at length in the answer”).
B. Second Affirmative Defense
Defendant’s second affirmative defense asserts “[a]ny award
to plaintiff should be barred and/or reduced due to plaintiff’s
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contributory negligence and/or comparative fault and/or that of a
third party.”6 An affirmative defense of contributory negligence
need not accompanied by extensive factual allegations, and cases
predating Woodfield suggest that no facts are required at all.
See American Motorists Ins. Co. V. Napoli, 166 F.2d 24, 26 (5th
Cir. 1948); Sutton v. United States, Civ. A. No. 91-1777, 1993 WL
262674, at *2 (E.D. La. July 1, 1993). Woodfield, however,
requires a defense of contributory negligence or comparative
fault to provide fair notice to the plaintiff of the nature of
the defense. See Harris, 2011 U.S. Dist. LEXIS 97250, at *7
(striking an affirmative defense asserting contributory
negligence). This defense fails to provide any facts supporting
the factual basis for the plaintiff’s contributory negligence or
a third party’s comparative fault. Accordingly, the Court strikes
defendant’s second affirmative defense as it fails to provide
plaintiff with fair notice under Woodfield.
C. Fourth Affirmative Defense
Defendant’s fourth affirmative defense asserts that
plaintiff’s claims for exemplary or punitive damages are
“unconstitutional and barred by the Fifth, Eighth and Fourteenth
Amendments to the U.S. Constitution, and proscribed under
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Louisiana law.”7 This assertion does not meet the minimum fair
notice test under Woodfield. It does not identify the applicable
state law provisions, or the factual basis for the application of
any legal provision. This defense fails to give plaintiff even
fair notice under Woodfield because “[t]he general reference to
‘statute’. . . could support a host of reasons to deny relief.”.
Courtesy Bldg. Servs., Inc., 2011 WL 208408, at *4 (striking a
similar affirmative defense under Woodfield and noting that such
defenses are “broadly-worded averment[s] that cover[] a multitude
of potential defenses.”). Accordingly, the Court grants the
motion to strike as to defense four.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s
motion to strike as to the first defense. Because the Court finds
that defendant failed to sufficiently plead their second and
fourth defenses, the Court GRANTS plaintiff’s motion to strike as
to those claims but gives defendant fourteen days to amend its
answer to assert its defenses properly.
New Orleans, Louisiana, this 6th day of September, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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