Schlesinger v. Hasco Thibodaux, L.L.C.
Filing
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ORDER AND REASONS granting in part and denying in part 10 Motion to Strike Affirmative Defenses re 8 Answer to Complaint. Signed by Judge Helen G. Berrigan on 02/07/2014. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW SCHLESINGER
CIVIL ACTION
VERSUS
NO.: 13-6237
HASCO THIBODAUX, LLC.
SECTION: “C”
ORDER AND REASONS
Before the Court is a Motion to Strike Affirmative Defenses filed by the plaintiff, Andrew
Schlesinger. Rec. Doc. 10. The defendant, Hasco Thibodaux, LLC opposes the motion. Rec. Doc.
11. Having considered the applicable law, the record, and the memoranda of counsel, the Court finds
that the Motion to Strike Affirmative Defenses is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
This Motion comes before the Court in order to settle the question of whether certain
affirmative defenses outlined in the defendant's Answer meet the requisite pleading standard under
Federal Rule of Civil Procedure 8(b) in order to survive a motion to strike under Federal Rule of
Civil Procedure 12(f). Rec. Doc. 8.
The defendant is a limited liability company organized in the state of Mississippi. Id. at 2.
The defendant is registered to do business in Louisiana and is the owner and lessor of the Plaza Del
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Rienzi Shopping Center (Shopping Center) located at 375 North Canal Boulevard, Thibodaux,
Louisiana 70301. Id.
The plaintiff has spina bifida and requires a wheelchair for mobility. Rec. Doc. 1 at 1-2. The
plaintiff visited the Shopping Center and alleges "serious difficulty accessing the goods and utilizing
the services therein due to architectural barriers." Id. at 3. The plaintiff also alleges multiple
violations under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (ADA).
Id. at 2.
II. LEGAL STANDARD
1. Motions to Strike
Under Federal Rule of Civil Procedure 8(a), a claim for relief must contain a short and plain
statement of the grounds on which the pleader is entitled to relief. Under Federal Rule of Civil
Procedure (8)(c), a party must state any affirmative defense in its claim for relief. Federal Rule of
Civil Procedure 12(f) states that the Court may strike any defense that is insufficient, redundant,
immaterial, impertinent, or scandalous either on its own motion, or on motion by a party. A motion
to strike is appropriate when the allegations are prejudicial to the opposing party or immaterial to
the lawsuit. Johnson v. Harvey, 1998 WL 596745, at *7 (E.D.La. 1998). An allegation is immaterial
to the lawsuit when the challenged allegations do not bear on the subject matter of the litigation.
Bayou Fleet P’ship, LLC v. St. Charles Parish, 2011 WL 2680686, at *5 (E.D.La. Jul. 8, 2011). The
Court will not decide a disputed question of fact on a motion to strike. Gonzalez v. State Farm Mut.
Auto. Ins. Co., 2011 WL 2607096 at*5 (E.D. La. July 1, 2011).
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2. Pleading Standard for Affirmative Defenses
In Woodfield v. Bowman, the Fifth Circuit directly addressed the pleading standard for
affirmative defenses. 193 F.3d 354, 362 (5th Cir. 1999). In that case, the Fifth Circuit articulated
three important standards for pleading affirmative defenses. First, Woodfield held that an affirmative
defense requires the same pleading standard as the complaint. Id. Second, Woodfield articulated a
“fair notice” standard for pleading affirmative defenses which requires enough specificity so that
the plaintiff is not a victim of unfair surprise. Id. Third, under Woodfield, a “boilerplate” defense
pleading is not sufficient under Federal Rule of Civil Procedure (8)(c). Id.
However, Woodfield was decided before two recent Supreme Court cases on pleading
standards. The first, Bell Atlantic v. Twombly, held that in order to meet the requirements of Federal
Rules of Civil Procedure (8), a claim for relief must be “plausible on its face.” 550 U.S. 544, 570,
(2007). In the second case, Ashcroft v. Iqbal, the Court held that when considering the factual
allegations of the complaint as true, a claim must cross the line “from conceivable to plausible” and
allow one to draw the “reasonable inference” that the defendant is liable. 556 U.S. 662, 680 (2009).
Under these two cases, a claim for relief must plead enough facts so that, taken in the light
most favorable to the pleader, it is plausible that the pleader is entitled to relief. Bell Atlantic v.
Twombly, 550 U.S. at 550; Ashcroft v. Iqbal, 556 U.S. at 680-682. While it is clear that Iqbal and
Twombly apply the plausibility standard to pleading a claim for relief, the pleading standard for
affirmative defenses has not been clarified.
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After Twombly but before Iqbal, the Fifth Circuit addressed the pleading standard for
affirmative defenses in Rogers v. McDorman. 521 F.3d 381, 385 (5th Cir. 2008). In Rogers, the
court used a “fair notice” pleading standard which requires enough factual particularity to avoid
unfair surprise to the plaintiff. Id. The court determined that an affirmative defense is waived when
a plaintiff is prejudiced in his ability to respond. Id. The Fifth Circuit has not addressed the pleading
standards for affirmative defenses after Iqbal. Therefore, Woodfield is still applicable to motions to
strike affirmative defenses.
III. DISCUSSION
A. First Affirmative Defense
The defendant's first affirmative defense asserts "Plaintiff's Complaint fails to state a
claim upon which relief can be granted." Rec. Doc. 8 at 4. The defense of failure to state a claim
"mimics" form 30 in the appendix to the Federal Rules of Civil Procedure and is therefore
legally sufficient. Schlosser v. Metro. Prop. & Cas. Ins. Co., 2012 WL 3879529 at *3 (E.D.La.
Aug. 30, 2011); Fed.R.Civ.P. 84, Form 30. Therefore, the Court declines to strike the first
defense.
B. Second and Third Affirmative Defenses
The defendant's second affirmative defense asserts "Plaintiff has no private right of
action to enforce the ADA Guidelines cited in his complaint." Rec. Doc. 8 at 4. The defendant's
third affirmative defense asserts "Plaintiff has no cause of action against Defendant for certain
allegations set forth in the complaint." Id. In their Memorandum in Opposition, the defendant
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claims that both their second and third defenses challenge the plaintiff's standing. Rec. Doc. 11
at 5- 6. Specifically, the defendant argues that both defenses challenge the plaintiff's standing
regarding a request for relief ordering the defendant to "alter the facility to make it accessible to
and usable by individuals with disabilities to the full extent required by Title III of the ADA."
Rec. Doc. 1 at 5. Defendant's seventh affirmative defense asserts "Plaintiff lacks standing to
assert an action to cure Defendant's property of all alleged ADA defects." Rec. Doc. 8 at 4.
These arguments are indistinguishable. Rule 12 (f) of the Federal Rules of Civil Procedure
permits a court to strike "any redundant, immaterial, impertinent, or scandalous matter." Fed. R.
Civ. P. 12 (f). The defendant's second and third affirmative defenses are redundant. Therefore,
the Court grants the Motion to Strike the second and third defenses, without prejudice to the
defendant's right to seek leave to amend its answer.
C. Ninth Affirmative Defense
The defendant's ninth affirmative defense asserts "[t]he modification of some or all of
the alleged barriers listed in the Complaint is not readily achievable." Rec. Doc. 8 at 4. This is
not an affirmative defense, but instead is a redundant denial. The Fifth Circuit in Johnson v.
Gambrinus Company/ Spoetzl Brewery held that "the plaintiff bears the ultimate burden of
proof on the issue" of whether a modification is readily achievable. 116 F. 3d. 1052, 1059 (5th
Cir. 1997). Therefore, the Court grants the Motion to Strike the ninth defense, without prejudice
to the defendant's right to seek leave to amend its answer.
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Accordingly,
IT IS ORDERED that the plaintiff’s Motion to Strike Affirmative Defenses is GRANTED
IN PART and DENIED IN PART. Rec. Doc. 10.
New Orleans, Louisiana, this 7th day of February, 2014.
______________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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