Miraglia v. Supercuts, Inc.

Filing 18

ORDER granting 11 Motion to Strike Answer. Signed by Judge Jay C. Zainey on 11/20/15. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MITCHELL MIRAGLIA

CIVIL ACTION

VERSUS

NO. 15-3017

SUPERCUTS, INC.

SECTION A(4)

ORDER AND REASONS
Before the Court is a Motion to Strike Answer to Complaint (Rec. Doc. 11) filed by
Plaintiff Mitchell Miraglia. Defendant Supercuts, Inc., opposes the motion. The motion, set for
hearing on October 21, 2015, is before the Court on the briefs without oral argument. For the
following reasons, the Motion is GRANTED.
Plaintiff Miraglia is a quadriplegic afflicted with cerebral palsy. (Rec. Doc. 1). He filed a
Complaint on August 28, 2015, against Supercuts, alleging that one of the company’s stores is in
violation of Title III of the Americans with Disabilities Act (“ADA”). (Rec. Doc. 1). Specifically,
Miraglia alleges that the store’s restroom is inaccessible to disabled patrons. (Rec. Doc. 1). He
seeks declaratory and injunctive relief. (Rec. Doc. 1). On September 18, 2015, Supercuts filed its
Answer, asserting a number of affirmative defenses. (Rec. Doc. 6). Miraglia then filed the instant
Motion, seeking to strike many of these affirmative defenses.
Federal Rule of Civil Procedure 12(f) authorizes the district court either sua sponte or on
motion to strike from a pleading any “redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. Pro. 12(f). “Although motions to strike a defense are generally disfavored, a Rule
12(f) motion to dismiss a defense is proper when the defense is insufficient as a matter of law.”
Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1051 (5th Cir. 1982),

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cert. denied, 459 U.S. 1105 (1983). The Fifth Circuit has held that “[a]n affirmative defense is not
valid if it appears to a certainty that the plaintiff would succeed despite any set of facts which could
be proved in support of the defense.” EEOC v. First Nat. Bank of Jackson, 614 F.2d 1004, 1008
(5th Cir. 1980) (citing 2A Moore’s Federal Practice P 8.27(3), at 8251 (2d Ed. 1979)).
As previously noted, Miraglia brings claims pursuant to Title III of the ADA. (Rec. Doc.
1). Title III requires an entity operating “public accommodations” to make “reasonable
modifications” in its policies “when . . . necessary to afford such . . . accommodations to
individuals with disabilities, unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such . . . accommodations.” PGA Tour, Inc. v. Martin, 532
U.S. 661, 661 (2001); 42 U.S.C.A. § 12182(b)(2)(A)(ii). Title III prohibits discrimination against
individuals “on the basis of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .”
42 U.S.C. § 12182(a).
Supercuts has asserted as an affirmative defense that it acted in good faith and lacked
wrongful intent. Even if Supercuts can prove its good faith and lack of wrongful intent, this will
not be a defense to Plaintiff’s claim, as the ADA does not require a finding of intent. See, e.g.,
Helen L. v. DiDario, 46 F.3d 325, 335 (3d Cir. 1995) (“[W]e will not eviscerate the ADA by
conditioning its protections upon a finding of intentional or overt discrimination.”); Lentini v. Cal.
Ctr. for the Arts, 370 F.3d 837, 846 (9th Cir. 2004) (“It is undisputed that a plaintiff need not show
intentional discrimination in order to make out a violation of the ADA.”). This defense is therefore
impertinent and should be stricken from Supercuts’ Answer.
Supercuts has also asserted as an affirmative defense that Miraglia failed to make an
amicable demand and failed to request accommodation prior to filing suit. As Miraglia asserts, this

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is not a requirement for Title III ADA claims. See Assoc. of Disabled Americans v. Neptune
Designs, Inc., 469 F.3d 1357, 1359-60 (11th Cir. 2006). Even if Supercuts can prove that Plaintiff
did not make an amicable demand or request accommodation before filing suit, this will not shield
Supercuts from liability if the store is in violation of the ADA. This defense is therefore impertinent
and should be stricken from Supercuts’ Answer.
Supercuts has also asserted as an affirmative defense that the alleged conduct was not the
actual or proximate cause of injury. This is not an affirmative defense but instead a denial of an
element of a claim. Further, a Title III ADA claim does not contain a causation element. See 42
U.S.C.A. § 12182. This defense is therefore impertinent and should be stricken from Supercuts’
Answer.
Supercuts has also asserted as an affirmative defense that an intervening or superseding
cause precludes its liability. An intervening or superseding cause is an affirmative defense to a tort
claim, and Defendant has cited no law supporting the argument that this type of affirmative defense
is applicable to an ADA claim. This defense is therefore impertinent and should be stricken from
Supercuts’ Answer.
Supercuts has also asserted comparative fault as an affirmative defense, suggesting that
Plaintiff is partially at fault because he failed to amicably resolve this matter by bringing it to
Supercuts’ attention before filing suit. The Court finds that there is no merit to such an assertion,
and this defense, too, is impertinent and should be stricken from Supercuts’ Answer.
Supercuts has also asserted prescription as an affirmative defense. Regarding this defense,
Supercuts’ Answer merely says, “Plaintiff’s claims are barred, in whole or in part, by the applicable
prescriptive and/or preemptive periods.” As Miraglia asserts, Supercuts has failed, in its Answer
and in its brief on the instant Motion, to specify which prescriptive period applies here. Further,

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Miraglia makes a compelling argument that because Miraglia alleges that the store’s ADA
violations are continuing, any applicable statute of limitations or prescriptive period has not yet
started to run. This defense is therefore stricken as insufficient.
Supercuts has also asserted the following as an affirmative defense: “Plaintiff’s claims are
barred to the extent the claimed violations are de minimus and non-actionable because they do not
materially impair Plaintiff’s use of the Property for its intended purpose.” Supercuts also asserted:
“Plaintiff’s claims are barred, in whole or in part, because no significant impediment to disable
[sic] persons exists on the Property that would justify the imposition of costly renovations.” As
Miraglia argues, these defenses are improper because even purported de minimus violations are
violations of the ADA. See Figueroa v. Restaurants L.P., 2012 WL 2373249 at *4 (C.D. Cal. Jun.
22, 2012) (striking de minimus affirmative defense in ADA context). Supercuts has failed to
present any law establishing an affirmative defense for de minimus violations. Regarding whether
the cost of renovations outweighs the significance of the impediment to a plaintiff, Supercuts fails
to give Miraglia adequate notice of the basis for this defense. See Vogel v. Linden Optometry APC,
2013 WL 1831686 (C.D. Cal. 2013) (finding affirmative defenses to ADA claims insufficient and
noting that “[t]he key to determining the sufficiency of pleading an affirmative defense is whether
it gives plaintiff fair notice of the defense”) (quoting Wyshak v. City Nat. Bank, 607 F.2d 824, 827
(9th Cir. 1979)). These defenses should therefore be stricken from Supercuts’ Answer.
Supercuts has also asserted as an affirmative defense that Miraglia lacks standing because
he is allegedly a “tester.” In the ADA context, a tester is a disabled individual who visits places of
public accommodation to see if they comply with the ADA. Supercuts alleges that Miraglia has,
in a short time frame, filed a number of other suits against companies, asserting ADA violations.
This Court finds that lack of standing is not a valid affirmative defense. It is not included in the

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list of affirmative defenses provided in Federal Rule of Civil Procedure 8(c). Further, for
affirmative defenses, the defendant bears the burden of pleading and proving them. Regarding
standing, the plaintiff bears the burden of pleading and proving it. Since this is not a valid
affirmative defense, it should be stricken from Supercuts’ Answer.
Supercuts’ final affirmative defense is a reservation to assert additional affirmative
defenses. This is not an affirmative defense and should be stricken from Supercuts’ Answer.
In sum, the Court is persuaded by Miraglia’s Motion to Strike and finds Supercuts’
affirmative defenses discussed herein to be impertinent, insufficient, and invalid.
Accordingly;
IT IS ORDERED that the Motion to Strike Answer to Complaint (Rec. Doc. 11) filed
by Plaintiff Mitchell Miraglia is GRANTED.
New Orleans, Louisiana, November 20, 2015

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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