Two Men and a Truck International, Inc. v. Two Guys Moving Bossier, LLC et al

Filing 34

RULING denying 13 Motion to Strike Affirmative Defense eight. Signed by Judge Shelly D. Dick on 11/25/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TWO MEN AND A TRUCK
INTERNATIONAL, INC.

CIVIL ACTION

VERSUS

15-254-SDD-RLB

TWO GUYS MOVING
BOSSIER, LLC, ET AL.

RULING
Before the Court is the Plaintiff, Two Men and a Truck International, Inc. (“TMTI”),
Motion to Strike Affirmative Defenses.1 Defendant, Two Guys Moving Bossier, LLC (“Two
Guys”) has voluntarily withdrawn two of the affirmative defenses made the subject of the
Motion but in all other respects opposes the Motion.2 For the reasons which follow,
Plaintiff’s Motion to Strike shall be DENIED.
I.

BACKGROUND AND PROCEDURAL POSTURE
TMTI filed suit against Two Guys alleging (1) infringement of registered service

marks; (2) false designation of origin and false advertising; (3) trademark dilution of
TMTI’s federally registered service marks; (4) trademark dilution under Louisiana law; and
(5) violations of the Louisiana Unfair Trade Practices Act and Consumer Protection Act.
In response, Two Guys, asserted affirmative defenses. TMTI moves to strike the
following defenses contending they are insufficient as a matter of law:

1

Rec. Doc. 13.
The Affirmative defenses of “Unclean Hands” and “Misuse” were voluntarily withdrawn by Defendant
Rec. Doc. 18.
2

1

First Affirmative Defense – Failure to State a Claim;
Second Affirmative Defense – Laches, Estoppel and/or Acquiescence;
Seventh Affirmative Defense – Failure to Mitigate; and
Eighth Affirmative Defense – Reservation of Affirmative Defenses.

II.

LAW AND ANALYSIS
Federal Rule of Civil Procedure 12(f) grants district courts the power to “strike from

a pleading…any redundant, immaterial, impertinent, or scandalous matter.” A Motion to
strike is a “‘drastic remedy’ that is ‘disfavored’ by courts and generally require a showing
of prejudice to the moving party.”3 If “there is any doubt as to whether under any
contingency the matter may raise an issue, the motion should be denied.”4
In Woodfield v. Bowman, the Fifth Circuit held that an “affirmative defense is
subject to the same pleading requirements as is the complaint” thus requiring the
defendant to plead defenses “with enough specificity or factual particularity to give the
plaintiff ‘fair notice’ of the defense that is being advanced.”5 TMTI invites the Court to
analyze the affirmative defenses under the heightened “plausibility” pleading standard for
Complaints set forth in Twombly and Iqbal.6 However, in a case decided after Twombly,
the Fifth Circuit applied the “fair notice” standard as the requirement for pleading
affirmative defenses.7 This Court will employ the “fair notice” standard in this case.

3

Becnel v. Mercedes-Benz USA, LLC, Civil Action No. 14-0003, 2014 WL 4450431 (E.D. La. Sept. 10,
2014).
4
Pan Am. Life Ins. Co. v. Blanco, 311 F.2d 424, Note 13 (5th Cir. 1962), citing 2 Moore's Fed.Prac., 2d ed.,
P12.21(2), pp. 2317-2318.
5
193 F.3d 354, 362 (5th Cir. 1999).
6
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
7
Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008).

2

A. Affirmative Defense of Failure to State a Claim
As its first affirmative defense, Two Guys has plead that the Complaint “fails to
state any claims upon which relief can be granted.” This defense is specifically recognized
in Form 30 of the Appendix to the Federal Rules of Civil Procedure. Notably, Federal Rule
of Civil Procedure 84 provides that “The forms in the Appendix suffice under these rules”.8
Although, in the Court’s view, the defense of “Failure to State a Claim” is nothing more
than notice that a Motion to Dismiss may be forthcoming, it is nonetheless a defense that
the Rules recognize as legally sufficient. Accordingly, the Motion to Strike affirmative
defense number 1 is DENIED.
B. Affirmative Defense of Laches, Estoppel, and/or Acquiescence
As a second affirmative defense, Defendant pleads laches, estoppel, and/or
acquiescence. An inexcusable delay in asserting a right or claim resulting in undue
prejudice gives rise to a defense of Laches.9 The Defendant plead facts that tend to show
an unreasonable delay in bringing suit. Specifically, Two Guys pled that it registered for
trademark protection of a design mark “TWO GUYS MOVING” on June 14, 2002, more
than twelve years prior to being contacted by Plaintiffs regarding potential infringement.
Two Guys pled that it has offered moving services in its area of operation since 1998 and
has established substantial goodwill since that time.10

The Court finds that these

allegations provide fair notice of a Laches defense. “[T]he defendant sufficiently
articulated the defense so that the plaintiff was not a victim of unfair surprise.”11

8
The Court notes that FRCP, Rule 84 is repealed effective December 1, 2015 and the Appendix of Forms
is likewise being eliminated effective December 1, 2015.
9
“Laches is commonly defined as an inexcusable delay that results in prejudice to the defendant.” Conan
Props., Inc. v. Conans Pizza, Inc., 752 F.2d 145, 153 (5th Cir. 1985).
10
Rec. Doc. 7.
11
Home Ins. Co. v. Matthews, 998 F.2d 305, 309 (5th Cir. 1993).

3

An estoppel defense requires a showing of detrimental reliance. Silence or inaction
can be the sin qua non resulting in a party’s detrimental reliance.12 The Defendant’s
factual allegations are thus sufficient to provide “fair notice” of an estoppel defense. For
the same reasons the defense of acquiescence is also sufficiently supported by the
factual allegations in the Defendant’s Answer. The Plaintiff’s Motion to Strike the second
affirmative defense is DENIED.
C. Affirmative Defense of Failure to Mitigate
Defendant pleads failure to mitigate as its Seventh Affirmative Defense. Plaintiff
contends that, because the Defendant failed to brief an opposition to the Motion to Strike
this defense, it is effectively conceded. Inasmuch as the Defendant expressly withdrew
its affirmative defenses of unclean hands and misuse, the Court perceives the
Defendant’s failure to oppose the motion to strike its failure to mitigate defense as an
oversight. “The failure to mitigate damages doctrine prevents a party from recovering
damages that could have been avoided by reasonable efforts made at a ‘trifling expense
or with reasonable exertions’.”13
The Court will deny the Motion to Strike the failure to mitigate (seventh) defense
at this juncture without prejudice to re-urging same after reasonable discovery is had.
D. Reservation of Affirmative Defenses
As its Eighth Affirmative Defense, Defendant “reserves the right to assert additional
affirmative defenses upon further investigation and discovery.”14 In light of FRCP Rule

12

In re Henderson, 577 F.2d 997, 1001 (5th Cir. 1978).
Janes v. Watson, 2006 WL 2322820, at *17 (W.D.Tex., 2006).
14
Rec. Doc. 5.
13

4

1515 allowing the amendment of pleadings, the Court finds it unnecessary to strike this
defense. Although unnecessary, this defense places the Plaintiff on fair notice that, if
discovery reveals a factual basis for additional affirmative defenses, the Defendant may
seek leave to plead same. The Court views this as “belt and suspenders” pleading but
finds nothing “redundant, immaterial, impertinent, or scandalous”16 that justifies striking
the defense. Accordingly the Motion to Strike affirmative defense eight is DENIED.
An Order will be entered in accordance with the forgoing reasons.
Signed in Baton Rouge, Louisiana on November 25, 2015.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

15

Rule 15(a) governs the right to amend pleadings, and states that a “party may amend its pleading once
as a matter of course,” and “[i]n all other cases, a party may amend its pleading only with the opposing
party’s consent or the court’s leave”.
16
FRCP Rule 12(f).

5