Schlesinger v. W.L. & R., Inc.
Filing
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ORDER AND REASONS granting in part 10 Motion to Strike Affirmative Defenses. Defendant W.L. & R Inc.'s Third and Fifteenth affirmative defenses are hereby STRICKEN from its answer. Signed by Judge Jane Triche Milazzo. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW SCHLESINGER
CIVIL ACTION
VERSUS
NO: 13‐5829
W.L. & R, INC.
SECTION: "H"(5)
ORDER AND REASONS
Before the Court is a Motion to Strike Affirmative Defenses (R. Doc. 10) filed by Plaintiff
Andrew Schlesinger. For the following reasons, the Motion is GRANTED IN PART, and Defendant
W.L. & R Inc.'s Third and Fifteenth affirmative defenses are hereby STRICKEN from its answer.
BACKGROUND
This is a civil action for declaratory and injunctive relief under Title III of the Americans With
Disabilities Act, 42 U.S.C. § 12181 et seq. Defendant answered the complaint and asserted several
affirmative defenses. Plaintiff moves this Court to strike Defendant's First, Second, Third, Twelfth,
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Fifteenth, and Sixteenth affirmative defenses.
LEGAL STANDARD
Rule 12(f) permits a district court to "strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). An affirmative
defense is subject to the notice pleading standards in Rule 8 and must therefore be pleaded "with
enough specificity or factual particularity to give the plaintiff 'fair notice' of the defense that is
being advanced." Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). A motion to strike
under Rule 12(f) is a "drastic remedy" that should be used sparingly. See Augustus v. Bd. of Pub.
Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962). Thus, "even when technically
appropriate and well‐founded," a motion to strike should not be granted unless the moving party
demonstrates prejudice. Abene v. Jaybar, LLC, 802 F. Supp. 2d 716, 723 (E.D. La. 2011) (internal
quotation marks omitted); accord Diesel Specialists, LLC v. MOHAWK TRAVELER M/V, Nos.
09–2843, 11–1162, 2011 WL 4063350, at *1 (E.D. La. Sept. 13, 2011). Whether to grant a motion
to strike is committed to the trial court's sound discretion. Who Dat, Inc. v. Rouse's Enters., LLC,
No. 12–2189, 2013 WL 395477, at *2 (E.D. La. Jan. 31, 2013).
LAW AND ANALYSIS
Defendant consents to dismissal of his Second affirmative defense. Accordingly, the Court
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focuses its analysis on Defendant's First, Third, Twelfth, Fifteenth, and Sixteenth Affirmative
defenses. As explained more fully below, only the Fifteenth affirmative defense will be stricken
from the answer.
Defendant's First affirmative defense provides as follows: "The Complaint fails to state a
claim, right, and/or cause of action against the Respondent upon which relief can be granted." The
Third affirmative defense is similar: "The Court is without jurisdiction as to all claims asserted by
Plaintiff in this matter inasmuch as the Complaint fails to state a proper claim for relief under the
Constitution of the United States or any United States Statute." Thus, as both parties agree, these
affirmative defenses challenge the legal sufficiency of Plaintiff's complaint.
There is no consensus among lower courts as to whether failure to state a legally cognizable
claim is properly pleaded as an affirmative defense. Compare Boldstar Technical, LLC v. Home
Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 2007) (finding failure to state a claim is not an
affirmative defense), and Lemery v. Duruso, No. 4:09CV00167 JCH, 2009 WL 1684692, at *3 (E.D.
Mo. June 16, 2009) (same), with Lane v. Page, 272 F.R.D. 581, 594 (D. N.M. 2011) (finding failure
to state a claim properly pleaded as affirmative defense), and Barnes & Noble, Inc. v. LSI Corp., 849
F. Supp. 2d 925, 945 (N.D. Cali. 2012) (same). The Fifth Circuit has not yet addressed this issue. But
at least two other Sections of this Court have. Each has held that failure to state a claim is
cognizable as an affirmative defense. See Schlosser v. Metro. Prop. & Cas. Ins. Co., No. 12–1301,
2012 WL 3879529, at *3 (E.D. La. Sept. 6, 2012); Schlesinger v. Hasco Thibodaux, LLC, No. 13–6237,
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2014 WL 527657, at *2 (E.D. La. Feb. 7, 2014). The Court finds the reasoning of its sister courts
persuasive and holds that Defendant's Rule 12(b)(6) defenses are properly pleaded.
But even assuming arguendo Defendant cannot assert a Rule 12(b)(6) defense as an
affirmative defense, Plaintiff has failed to demonstrate the requisite prejudice. If anything,
informing counsel that a dispositive motion may be forthcoming actually aids the prosecution of
a plaintiff's case.
Defendant's Twelfth affirmative defense provides as follows: "Defendant avers that the
claims in the lawsuit levied against them [sic] are frivolous, groundless and/or unreasonable, and
as such as, they [sic] are entitled to an award against the Plaintiff for all attorney fees and costs
expended in this matter." Although this defense is conclusory and fails to satisfy the notice
pleading requirements of Rule 8, Plaintiff has not demonstrated that failure to strike would be
prejudicial. See Abene, 802 F. Supp. 2d at 723–24 (finding affirmative defense inadequately
pleaded but declining to strike due to lack of prejudice).
In its Fifteenth affirmative defense, Defendant "asserts all affirmative defenses that are
alleged and are available to all parties in this matter." In addition to needlessly re‐urging its
previous affirmative defenses, Defendant purports to assert all other affirmative defenses not
pleaded. Clearly, a defendant cannot assert an affirmative defense without actually asserting it.
Furthermore, allowing this type of blanket affirmative defense would inject uncertainty into the
pleadings and would surely prejudice Plaintiff. Accordingly, the Fifteenth affirmative defense is
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stricken.
Defendant's Sixteenth affirmative defense reads as follows: "Respondent hereby reserves
his [sic] right to supplement and amend this Answer and add additional affirmative defenses as
discovery and the factual developments in this matter warrant." The Court cannot conceive of any
possibly way this defense will prejudice Plaintiff. Defendant is advised, however, that it may not
file a supplemental answer without first obtaining leave of Court. See Fed. R. Civ. P. 15(a).
CONCLUSION
For the reasons previously stated, the Motion to Strike is GRANTED IN PART, and
Defendant's Third and Fifteenth affirmative defenses shall be stricken from the record.
New Orleans, Louisiana, this 20th day of February, 2014.
______________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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