United States of America f/u/b Penn-Mar Door and Hardware, LLC et al v. Western Surety Company et al
ORDER denying Plaintiffs' 12 Motion to Strike Affirmative Defenses of Western Surety. Signed by Judge Marvin J. Garbis on 1/10/14. (dass, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
f/u/b PENN-MAR DOOR AND
HARDWARE, LLC, et al.
WESTERN SURETY COMPANY, et al.
CIVIL ACTION NO. MJG-13-2804
MEMORANDUM AND ORDER RE: AFFIRMATIVE DEFENSES
The Court has before it the Motion to Strike Affirmative
Defenses – Western [Document 12] and the materials submitted
The Court finds a hearing unnecessary.
Certainly, Defendant Western Surety Company has pleaded, in
summary fashion, some fourteen affirmative defenses.
no doubt that the affirmative defense pleadings are no more than
Rule 12(f) of the Federal Rules of Civil Procedure1 provides
in relevant part that a court may, on its own or on motion,
"strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter."
Striking defenses under Rule 12(f) is generally disfavored,
although such motions may be granted if they remove potential
All Rule references herein are to the Federal Rules of
confusion. See Waste Management Holdings, Inc. v. Gilmore, 252
F.3d 316, 347 (4th Cir. 2001).
Rule 8(c)(1), which governs affirmative defenses, provides
simply that "[i]n responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense."
affirmative defense is not a claim for relief.
Rules 8 (b) and
(c), which govern defenses, do not contain the language of Rule
8(a), which requires the complainant to "show that the pleader
is entitle[d] to relief."
While recognizing that there are courts holding a contrary
view, this Court agrees with the rationale of Wells Fargo & Co.
v. United States, 750 F. Supp. 2d 1049, 1051-52 (D. Minn. 2010)
(noting that the "plausibility" requirement of Twombly and Iqbal
does not extend to the pleading of affirmative defenses).2
Accordingly, the Motion to Strike Affirmative Defenses –
Western [Document 12] is DENIED.
SO ORDERED, on Friday, January 10, 2014.
Marvin J. Garbis
United States District Judge
The Court recognizes that there are differences of opinion
within the Circuits and within this Circuit regarding the
standard for the pleading of defenses under Rules 8(b) and (c).
See, e.g., Pennell v. Vacation Reservation Ctr., LLC, No.
4:11CV53, 2011 WL 6960814, at *3 n.2 (E.D. Va. Sept. 20, 2011)
(collecting cases that have applied the Twombly-Iqbal standard
to the pleading of affirmative defenses).
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