Alba-Cruz v. Ard et al
RULING AND ORDER denying 14 Motion to Strike Affirmative Defenses of Defendant Sheriff Jason Ard. Signed by Magistrate Judge Erin Wilder-Doomes on 05/31/2017. (NLT) Modified on 5/31/2017 to edit the text (NLT).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EDISON JHON ALBA-CRUZ
SHERIFF JASON ARD, as the public entity
responsible for Livingston Parish Prison; and
SHERIFF TONEY EDWARDS, as the public
entity responsible for Catahoula Correctional
RULING AND ORDER ON PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE
DEFENSES OF DEFENDANT SHERIFF JASON ARD
Before the Court is Plaintiff’s Motion to Strike Affirmative Defenses of Defendant Sheriff
Jason Ard.1 The Motion to Strike is opposed.2 For the reasons that follow, Plaintiff’s Motion to
Strike Affirmative Defenses of Defendant Sheriff Jason Ard is DENIED.3
The Complaint in this matter alleges that Plaintiff is a “profoundly deaf” individual4 who
requires “auxillary aids and services to communicate effectively regarding legal matters.”5 It is
alleged that during the process of Plaintiff’s arrest, incarceration and release Plaintiff was not
provided with adequate means of communication at Livingston Parish Prison, Tangipahoa Parish
Prison, or Catahoula Correctional Center, and that Defendants thereby discriminated against
R. Doc. 14.
R. Doc. 18.
Because the Motion to Strike is denied, the undersigned considers the motion to be nondispositive and therefore
enters this Ruling. Compare, Hamden v. Tiger Brothers Food Mart, Inc., Civil Action 15-412, United States District
Court, Middle District of Louisiana, R. Doc. 16 (December 3, 2016 Report and Recommendation, n. 1) (“Because
granting the plaintiff’s Motion to Strike Answer would effectively be dispositive of the defenses asserted in the
Defendant’s Answer and Defenses … a report and recommendation is required.”).
R. Doc. 1, ¶9.
Plaintiff in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12102(2) (the
“ADA”) and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “RA”).
Defendant, Sheriff Ard, filed an Answer and Jury Demand on March 22, 2017 asserting
various defenses, including the three defenses that are at issue here:
The plaintiff, by virtue of his own actions and conduct, was guilty
of negligence and/or contributory negligence which bars or reduces
his recovery herein.
Defendant, Sheriff Ard, pleads the fault of third persons for whom
he is not responsible, in bar or reduction of plaintiff’s recovery
Plaintiff failed to avail himself of any administrative procedures
available to him and thus failed to exhaust his administrative
remedies prior to the institution of these proceedings and, therefore,
his Complaint fails to state a cause of action against defendant,
In the Motion to Strike, Plaintiff alleges that, with regard to Sheriff Ard’s Ninth Defense,
comparative fault/contributory negligence is not a defense to claims under the ADA. With regard
to the Tenth Defense, Plaintiff alleges that Sheriff Ard has not provided authority for the
proposition that acts of third parties can provide a defense to a public entity’s liability under the
ADA. Finally, with regard to the Eleventh Defense, Plaintiff argues that there is no exhaustion
requirement for claims under the ADA or RA. Plaintiff alleges all three defenses prejudice him
by requiring him to engage in discovery on meritless legal theories.
Sheriff Ard responds that a compensatory damages claim under the ADA and RA is
analogous to a personal injury tort claim such that traditional tort defenses (like those alleged in
Sheriff Ard’s Ninth and Tenth Defenses) are appropriate. Further, with regard to the Ninth and
R. Doc. 11, pp. 2-3.
Tenth Defenses, Sheriff Ard argues that the Western District of Louisiana’s opinion in Bledsoe v.
City of Shreveport, No. CV 15-2484, 2016 WL 8710974 (W.D. La. June 24, 2016), is instructive.
In Bledsoe, Plaintiff’s arguments, seeking to strike defenses to ADA and RA claims similar to
Sheriff Ard’s Ninth and Tenth Defenses here, were rejected. Finally, with regard to the defense of
failure to exhaust administrative remedies, while Sheriff Ard concedes there is no requirement of
exhaustion under the ADA or the RA, he argues that other federal statutes require exhaustion of
administrative remedies before an ADA or RA claim can be asserted in some instances.
Law and Analysis
Rule 12(f) of the Federal Rules of Civil Procedure provides that “[t]he court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Motions to strike a defense are generally disfavored and are infrequently granted. 7 The
decision to strike a pleading is within the discretion of the court.8 A motion to strike defenses
should not be granted unless the moving party demonstrates that denial of the motion would be
prejudicial to the moving party.9 Finally, the court must deny a motion to strike if there is a
question of law or fact regarding a particular defense.10
Here, Plaintiff has not met his heavy burden of establishing that striking Sheriff Ard’s three
defenses at issue is appropriate. With regard to the Eighth and Ninth Defenses which assert
See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982); FDIC
v. Niblo, 821 F. Supp. 441, 449 (N.D. Tex. 1993) (“Both because striking a portion of a pleading is a drastic remedy,
and because it is often sought by the movant as a dilatory tactic, motions under Rule 12(f) are viewed with disfavor
and are infrequently granted.”).
Fed. R. Civ. P. 12(f); NCO Fin. Sys., Inc. v. Harper-Horsley, Civ. Action No. 07-4247, 2008 WL 2277843, at *2
(E.D. La. May 29, 2008) (citing Niblo, 821 F. Supp. at 449 (N.D. Tex. 1993)).
See Global ADR, Inc. v. City of Hammond, No. Civ. A. 03-457, 2003 WL 21146696, at *1 (E.D. La. May 15, 2003).
Solis v. Bruister, Civ. Action No. 4:10cv77-DPJ-FKB, 2012 WL 776028, at * 7 (S.D. Miss. Mar. 8, 2012) (“Even
when addressing a pure question of legal sufficiency, court are ‘very reluctant’ to determine such issues on a motion
to strike, preferring to determine them ‘only after further development by way of discovery and a hearing on the
merits, either on summary judgment motion or at trial’”) (citing Veranda Assocs., LP v. Hooper, No. H-11-4206, 2012
WL 602143, at 3 (S.D. Tex. Feb. 23, 2012) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1381 (3d ed. 2004))).
comparative and third-party fault, respectively, Bledsoe is instructive. There, the plaintiff was
making claims under the ADA and RA related to the City of Shreveport’s failure to adequately
maintain sidewalks. The plaintiff in Bledsoe sought to strike the following defense: “Defendant
raises the affirmative defenses of failure to mitigate damages, comparative fault, and third party
fault, in the event that these are shown to apply.”
In refusing to strike this defense, the Court
stated that it was “not persuaded that Defendant’s eighth defense is not potentially relevant to at
least some of Plaintiff’s claims. Additionally, Plaintiff has not demonstrated any significant
prejudice created by the continued presence of this defense.”11
Further, Plaintiff here alleges that he suffered loss of freedom of movement, invasion of
his civil rights, and emotional distress due to the actions of Sheriff Ard and Sheriff Toney
Edwards.12 Thus, with regard to Sheriff Ard’s Tenth Defense, the fact Plaintiff is seeking such
damages generally, coupled with the fact there are two defendants here both of whom are alleged
to have contributed to such damages, militates against striking the defense of third-party fault.
Plaintiff’s Motion to Strike is likewise denied with regard to Sheriff Ard’s Eleventh
Affirmative Defense (failure to exhaust administrative remedies).
Though both parties
acknowledge that there is no exhaustion requirement contained in the ADA or RA, Sheriff Ard’s
argument that certain other federal statutes, including the Prison Litigation Reform Act (“PLRA”),
require exhaustion of remedies before claims under the ADA or RA can be maintained, is correct.13
Although it is not clear whether the PLRA is implicated in this case (and Plaintiff did not seek
leave to file a reply memorandum to address this issue), such a question seems to be at the heart
Bledsoe, 2016 WL 8710974, at *3.
R. Doc. 1, ¶1.
See, e.g., Nottingham v. Richardson, 499 Fed.Appx. 368, 373 (5th Cir. 2012) (“Under the PLRA, ‘[n]o action shall
be brought with respect to prison conditions … by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.’ 42 U.S.C. § 1997e. This includes actions under §
1983 and the ADA.”).
of the reason courts generally disfavor a motion to strike as a procedural vehicle for deciding even
questions of legal sufficiency at this early stage of the proceedings, preferring instead to resolve
such issues on the merits after at least some discovery has been conducted.14
Finally, the Motion to Strike must be denied because Plaintiff has failed to make a showing
as to how he will be significantly prejudiced if Sheriff Ard is allowed to maintain the three
defenses. Sheriff Ard raised seventeen (17) defenses in his Answer and Jury Demand. Sheriff
Edwards raised fifteen (15) defenses in his Answer. While Plaintiff argues that he will be
prejudiced if he is forced to conduct discovery with regard to the three defenses asserted by Sheriff
Ard that Plaintiff claims have no merit, Sheriff Edwards also raises substantially the same defenses
that are at issue in the Motion to Strike.15 Despite this fact, Plaintiff has only sought to have those
defenses stricken from Sheriff Ard’s Answer. It is not clear how Plaintiff can maintain a claim of
prejudice for having to conduct discovery on legal theories he claims were inappropriately asserted
by Sheriff Ard when Plaintiff will presumably conduct that discovery anyway with regard to the
same defenses asserted by Sheriff Edwards.
See, Solis, infra at n. 10.
R. Doc. 13.
That petitioner by virtue of his own actions and conduct was guilty of negligence
and/or contributory negligence and/or assumption of the risk, all of which will be
more fully shown at the trial of this matter.
In the alternative, defendant avers that plaintiff’s damages, if any, were caused or
contributed to by other persons or parties over whom this defendant exercises no
authority jurisdiction or control and for whose actions he is not legally
Petitioner has failed to exhaust available grievance procedures as required by 42
U.S.C. § 1997e(a), and his Complaint should be dismissed in its entirety.
The Plaintiff has not met his burden of establishing either the legal insufficiency of the
Eighth, Ninth and Tenth Defenses asserted by Sheriff Ard in his Answer and Jury Demand, nor
has Plaintiff shown that a failure to strike these defenses will result in any prejudice to Plaintiff.
IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike Affirmative Defenses of
Defendant Sheriff Jason Ard16 is DENIED.
Signed in Baton Rouge, Louisiana, on May 31, 2017.
UNITED STATES MAGISTRATE JUDGE
R. Doc. 14.
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