Gulf Restoration Network et al v. Environmental Protection Agency et al

Filing 33

ORDER AND REASONS - IT IS HEREBY ORDERED that plaintiffs' Motion to Strike Defendants' Answer as Non-responsive (Rec. Doc. 10 ), is GRANTED IN PART to the extent that the court finds that defendants' answer does not comply with Federa l Rule of Civil Procedure 8(b); and is DENIED IN PART, to the extent it seeks to have the answer stricken as non-responsive. IT IS FURTHER ORDERED that defendants shall replead their answer in compliance with Federal Rule 8(b) within 15 days of entry of this order. Signed by Judge Mary Ann Vial Lemmon on 10/25/2018. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GULF RESTORATION NETWORK, ET
AL

CIVIL ACTION

VERSUS

NO: 18-1632

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL

SECTION: "S" (5)

ORDER AND REASONS
IT IS HEREBY ORDERED that plaintiffs' Motion to Strike Defendants'

Answer as Nonresponsive (Rec. Doc. 9), is GRANTED IN PART and DENIED
IN PART. IT IS FURTHER ORDERED that defendants shall file an amended
answer consistent with this order within 15 days of entry of this order.
BACKGROUND
Before the court is plaintiffs' Motion to Strike Defendants' Answer as
Nonresponsive.
In this case, plaintiffs challenge defendant, United States Environmental
Protection Agency's ("EPA’s") approval of Louisiana’s lowered requirements for
dissolved oxygen levels in thirty-one water bodies north and west of Lakes
Ponchartrain and Maurepas, extending south and west to the Mississippi River.
The affected water bodies include the Tchefuncte River, the Tickfaw River, the

Amite River, the Tangipahoa River, Bayou Lacombe, Bayou Trepagnier, Cane
Bayou, Bayou Labranche, Bayou Castine, Pontchatoula Creek, and Bayou Liberty.
Plaintiffs allege that the lower dissolved oxygen criteria approved by EPA allow
significantly more pollution than was previously allowed– including treated
sewage – to be discharged into these rivers, streams, creeks, bays, and bayous, and
that in approving nearly hypoxic standards, (1) the EPA disregarded Clean Water
Act requirements that water quality criteria must protect the fish and wildlife which
live in these water bodies, (2) relied on unsound science, and (3) lacked a rational
basis for the approval. Plaintiffs further allege that the EPA approved these
hypoxic water quality standards without insuring that the lowered criteria would
not jeopardize the continued existence of species listed under the Endangered
Species Act, like the Gulf sturgeon, or result in the adverse modification of their
critical habitat.
The EPA filed an answer to the original complaint, to which the instant
motion to strike was originally directed. Subsequent to the filing of that motion,
plaintiffs filed a First Amended Complaint (Rec. Doc. 13), to which a second
answer was filed by the EPA. Plaintiff considered the second answer similarly nonresponsive, and, instead of filing a renewed motion to strike, sought and was
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granted leave to file a supplemental memorandum in support of the original motion
to strike. Thus, the motion is now directed to the answer to the amended complaint
instead of the answer to the original complaint.
ARGUMENTS OF THE PARTIES
Plaintiffs contend that the EPA's Answer to the First Amended Complaint is
nonresponsive and not properly pleaded, because for many of plaintiffs'
allegations, the EPA did not admit or deny the facts stated in the amended
complaint, but rather responded that the facts were based on documents or reports
that “speak for themselves.” As well, the EPA also refused to respond to many of
the allegations by contending they are “conclusions of law to which no response is
required.” Accordingly, plaintiffs have moved under Rule 12(f) to strike
defendants' answer as non-responsive.
The EPA has countered that their answer satisfies the minimal pleading
requirements of Federal Rule of Civil Procedure 8, and that plaintiffs have not
alleged the required prejudice from the EPA's answer as pled, nor can they,
because this is a record review case brought under the APA in which plaintiffs'
claims will be resolved on the administrative record before the court, and which
will involve no discovery nor the resolution of disputed fact issues.
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DISCUSSION
I. Defendants' Answer does not meet the requirements of Rule 8(b).
Federal Rule of Civil Procedure 8(b) provides:
(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted
against it; and
(B) admit or deny the allegations asserted against it by an opposing
party.
(2) Denials—Responding to the Substance. A denial must fairly respond
to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to
deny all the allegations of a pleading—including the jurisdictional
grounds—may do so by a general denial. A party that does not intend
to deny all the allegations must either specifically deny designated
allegations or generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to
deny only part of an allegation must admit the part that is true and deny
the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge
or information sufficient to form a belief about the truth of an allegation
must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegation—other than one relating to
the amount of damages—is admitted if a responsive pleading is required
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and the allegation is not denied. If a responsive pleading is not required,
an allegation is considered denied or avoided.
Thus, under Rule 8, "an opposing party has three options for responding to
an allegation: (1) it can admit the allegation; (2) it can deny the allegation; or (3) it
can state that it lacks information or knowledge sufficient to form a basis to either
admit or deny." Rule 8. General Rules of Pleading, 1 Federal Rules of Civil
Procedure, Rules and Commentary Rule 8 (citing cases). However, as the Federal
Rule commentators have observed:
It is (unfortunately) common for lawyers to use responses other
than the three options of admitting, denying, and stating lack of
information. For example, lawyers sometimes will respond to an
allegation by saying that “it is a legal conclusion that requires no
response.” Also, when an allegation concerns the content of a document,
lawyers sometimes will respond by saying that “the document speaks for
itself.” Under a strict interpretation of Rule 8(b), these responses
constitute admissions; this is because they are not denials, and Rule
8(b)(6) treats all allegations not denied as having been admitted. Thus,
lawyers who make use of “other responses” risk having them stricken or
treated as admissions unless the court construes them otherwise.
Id. (citing cases).
Defendants' answer herein suffers from the defects described above in that it
states numerous times that "the document speaks for itself," (confusingly, in some
cases, because the corresponding allegation contains no reference to a document).

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Likewise, defendants' answer repeatedly states that certain allegations are "legal
conclusions requiring no answer." Thus, it does not conform with Rule 8(b).
As numerous district courts have concluded:
Responses that documents speak for themselves and that
allegations are legal conclusions do not comply with rule 8(b)'s
requirements. See Thompson v. Ret. Plan for Employees of S.C. Johnson
& Sons, Inc., 2008 WL 5377712, at *1–2 (E.D. Wis. Dec. 22,
2008)(“Rule 8 does not permit a defendant to respond only by stating
that the plaintiff's allegations ‘constitute conclusions of law.’ ...
Similarly, Rule 8 does not permit a defendant to respond that the
document ‘speaks for itself.’”) (quoting State Farm Mut. Auto. Ins. Co.
v. Riley, 199 F.R.D. 276, 278 (N.D. Ill.2001).); N. Ind. Metals v. Iowa
Exp., Inc., 2008 WL 2756330, at *3 (N.D. Ind. July 10, 2008) (“[A]
responsive pleading indicating that a document ‘speaks for itself’ is
insufficient and contrary to the Federal Rules of Civil Procedure.”);
Rudzinski v. Metropolitan Life Ins. Co., 2007 WL 2973830, at *4 (N.D.
Ill. Oct. 4, 2007) (stating that a defendant may not simply employ
“summarizing language” and then state, “essentially, that the terms of the
referenced documents speak for themselves.”); State Farm Mut. Auto.
Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill.2001) (“Another regular
offender is the lawyer who takes it on himself or herself to decline to
respond to an allegation because it ‘states a legal conclusion.’ That of
course violates the express Rule 8(b) requirement that all allegations
must be responded to.”). “Indeed, legal conclusions are an ‘integral part
of the federal notice pleading regime. Therefore, legal conclusions must
be addressed in one of the three ways contemplated by Rule 8.’”
Thompson v. Ret. Plan for Employees of S.C. Johnson & Sons, Inc.,
2008 WL 5377712, at *1 (citation omitted).
Lane v. Page, 272 F.R.D. 581, 602–03 (D.N.M. 2011).
Applying the foregoing principles, the court concludes that defendants'
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answer does not comply with Rule 8(b). Moreover, defendants' argument that they
are exempt from the requirements of Rule 8(b) because this case is an record
review case, is not accepted. First, as noted by plaintiffs in their reply, the drafters
could have explicitly excepted record review cases from Rule 8(b), which they did
not (in contrast to Rule 26(a)(1), which explicitly exempts record review cases
from initial disclosure).1 Second, also as noted in plaintiffs' reply, courts have in
fact required defendants to replead their answers for deficiencies similar to those
present here in other record review cases. See, e.g., Chicago Dist. Council of
Carpenters Pension Fund v. Balmoral Racing Club, Inc., 2000 WL 876921, at *1
(N.D. Ill. June 26, 2000); Bruce v. Anthem Ins. Cos. Inc., 2015 WL 1860002, at
*1-2 (N.D. Tex. Apr. 23, 2015). Accordingly, defendants have failed to conform
with the applicable rule, Rule 8(b), in filing their answer to the first amended
complaint.
II. A Motion to Strike under Rule 12(f) is not the best vehicle for the requested

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Federal Rule of Civil Procedure 26(B) provides:
Proceedings Exempt from Initial Disclosure. The following proceedings are exempt
from initial disclosure:
(i) an action for review on an administrative record. . . .
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relief.
Rule 12(f) provides: “The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” The
provision was adopted to provide a mechanism to dispose of a wholly insufficient
defense at the pleading stage. 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1381 (3d ed. 2004)(emphasis added). With
respect to Rule 8, the provision has been used to strike insufficient affirmative
defenses under Rule 8(c), as well as scandalous and extraneous matter. However,
there appears to be no controlling authority mandating that it is the proper vehicle
to address those portions of an answer which do not comprise affirmative defenses,
but are nonetheless insufficient.
Rule 8 itself provides a built-in mechanism for curing such pleading defects:
"An allegation—other than one relating to the amount of damages—is admitted if a
responsive pleading is required and the allegation is not denied." Fed. R. Civ. P.
8(b)(6); see also, WRIGHT & MILLER, supra, § 1261 at 528. (“If an answer is not
sufficiently definite in nature to give reasonable notice of the allegations in the
complaint sought to be placed in issue, the opponent's averments may be treated as
admitted.”). However, courts and litigants have used alternative vehicles to address
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the problem, for example, a motion to require the defendant to replead (see, e.g.,
Rodriguez v. Prof'l Servs. Assistance, Inc., 2007 WL 667166, at *1 (W.D. Tex.
Feb.16, 2007)), or a motion to compel defendants to file an amended answer. See,
e.g., Bruce, 2015 WL 1860002, at *1-2. These approaches allow the defendants to
cure their pleading defects without suffering the consequences of having the
averments of plaintiffs' complaint deemed admitted, or having their responsive
pleadings stricken. See id., citing WRIGHT & MILLER, supra § 1261, at 530 (“[T]he
liberal amendment policy of Rule 15 provides a safety valve that permits the
district court to allow deviations from poorly framed denials when it seems
appropriate to do so.”). Also, because the court would not be proceeding under
Rule 12(f), there is no need for plaintiffs to demonstrate prejudice.2 Accordingly,
IT IS HEREBY ORDERED that plaintiffs' Motion to Strike Defendants'
Answer as Nonresponsive (Rec. Doc. 10), is granted in part to the extent that the
court finds that defendants' answer does not comply with Federal Rule of Civil
Procedure 8(b); and is denied in part, to the extent it seeks to have the answer

2

In the Eastern District of Louisiana, courts have held that "even when technically
appropriate and well-founded, motions to strike are not be granted in the absence of a showing of
prejudice to the moving party.” Abene v. Jaybar, L.L.C., 802 F. Supp. 2d 716, 723 (E.D. La.
2011) (citing 5C WRIGHT & MILLER, supra, § 1381 (internal quotations omitted).
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stricken as non-responsive;
IT IS FURTHER ORDERED that defendants shall replead their answer in
compliance with Federal Rule 8(b) within 15 days of entry of this order.

25th
New Orleans, Louisiana, this _____ day of October, 2018.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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