Taylor v. City of Saginaw et al

Filing 51

ORDER Granting in Part 34 Motion to Strike Affirmative Defenses. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ALISON PATRICIA TAYLOR,

Case Number 17-cv-11067 

Plaintiff,

Honorable Thomas L. Ludington

vs.

CITY OF SAGINAW and TABITHA HOSKINS,
Defendants.
_________________________________________/
ORDER GRANTING IN PART MOTION TO STRIKE AFFIRMATIVE DEFENSES
The Fourth Amendment to the United States Constitution prohibits state officers from
conducting a search of its citizens and their property subject to two primary exceptions. First, the
state officers may conduct the search if they obtain a search warrant supported by probable cause
and issued by a neutral and detached judge or magistrate. Second, the state officers may conduct
the search if a judicially determined exception exists to the warrant requirement. As explained in
Justice Harlan’s concurring opinion in Katz, the Fourth Amendment is intended to protect citizens’
actual expectations of privacy “that society is prepared to recognize as ‘reasonable.’” Katz v. U.S.,
389 U.S. 347, 361 (1967). The immediate case was particularly influenced by the decision of the
United States Supreme Court in U.S. v. Jones, 565 U.S. 400 (2012). In Jones, law enforcement
officers installed a GPS device on a target’s vehicle to monitor the vehicle’s movements without
obtaining a warrant. The Court concluded that the “Government trespassorily inserted the
information-gathering device” and accordingly, its actions constituted a search. Id. at 410.
Plaintiff in this case, Alison Taylor, brings her claim under Section 1983 on behalf of
herself and on behalf of all others similarly situated. Ms. Taylor alleges that she received fourteen

parking tickets because of law enforcement’s “unconstitutional methodology of the placement of
a chalk mark on one of the four tires” of her vehicle to substantiate that she used the parking places
longer than permitted by law. ECF No. 9 at PageID.73. The chalking of her tires (not parking her
vehicle longer than permitted), she suggests, was a trespass equivalent to that in Jones that was
conducted without a warrant and without an exception to the warrant requirement.
Defendant moved to dismiss the case. This Court agreed that a search was conducted,
surveyed the exceptions to the warrant requirement, and concluded that the community-caretaker
exception reasonably applied to the case. ECF No. 14. Plaintiff appealed. The Sixth Circuit agreed
that a search within the meaning of the Fourth Amendment was conducted, but that it “chalk[ed]
this practice up to a regulatory exercise, rather than a community-caretaking function.” ECF No.
19 at 2. But that was not the end.
Three days later, the Sixth Circuit docketed an “Amended Opinion.” ECF No. 20. The
amended opinion did not provide an explanation for the amendment nor why the original opinion
required amending. The only apparent difference between the two opinions was the addition of a
paragraph at the end of the amended opinion which provided:
Taking the allegations in Taylor’s complaint as true, we hold that chalking is a
search under the Fourth Amendment, specifically under the Supreme Court’s
decision in Jones. This does not mean, however, that chalking violates the Fourth
Amendment. Rather, we hold, based on the pleading stage of this litigation, that
two exceptions to the warrant requirement—the “community caretaking” exception
and the motor-vehicle exception—do not apply here. Our holding extends no
further than this. When the record in this case moves beyond the pleadings stage,
the City is, of course, free to argue anew that one or both of those exceptions do
apply, or that some other exception to the warrant requirement might apply.
Id. at PageID.241 (emphasis added).
The case was reopened and Defendants were directed to file an answer or responsive
pleading to Plaintiff’s complaint by September 18, 2019. ECF No. 31. Defendants filed their

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answer on September 17, 2019. ECF No. 32. And if the objective of the remand was to provide an
opportunity for expensive discovery, the parties are delivering. First up is Defendants’ answer,
which contained thirty-one denominated affirmative defenses. Plaintiff subsequently filed a
motion to strike all thirty-one affirmative defenses. ECF No. 34.
The Court ordered the parties to meet and confer to determine which affirmative defenses
Defendants would be willing to withdraw. ECF No. 39. Defendants filed supplemental briefing,
withdrawing affirmative defenses 1, 3, 4, 8, 10, 15, 27, 28, and 30. ECF No. 42 at PageID.422.
Affirmative defenses 2, 5, 6, 7, 9, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29, and
31 remain.
I.
A.
Federal Rule of Civil Procedure 8(a) addresses the requirements for a complaint. It requires
that the complaint provide “a short and plain statement of the claim showing that the pleader is
entitled to relief” and “a demand for the relief sought…” Fed. R. Civ. Pr. 8(a). The pleader need
not provide “detailed factual allegations”, but the “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678–79 (quotations and citation
omitted).
Rule 11, which applies to all pleadings, including complaints and responsive pleadings,
provides, “By presenting to the court a pleading…an attorney…certifies that to the best of the
person’s knowledge, information, and belief, formed after an inquiry reasonable under the

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circumstances…it is not being presented for any improper purpose,…the claims, defenses, and
other legal contentions are warranted by existing law[,]…[and] the factual contentions have
evidentiary support…” Fed. R. Civ. Pr. 11(b). Any party violating the rule, including a defendant
presenting affirmative defenses, exposes itself to the possibility of sanctions under Rule 11(c).
B.
After a plaintiff has filed a complaint, there are at least three avenues by which a defendant
may respond: a motion to dismiss attacking the legal adequacy of the plaintiff’s complaint, a
responsive pleading denying the factual allegations of the plaintiff’s complaint, and the
presentation of affirmative defenses which allege additional facts mitigating the legal significance
of the plaintiff’s complaint.
1.
Prior to filing an answer, a party may file a motion to dismiss under Rule 12(b) for lack of
subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process,
insufficient service of process, failure to state a claim upon which relief can be granted, or failure
to join a party. Fed. R. Civ. Pr. 12(b). Regarding specifically Rule 12(b)(6), a pleading fails to state
a claim if it does not contain allegations that support recovery under any recognizable legal theory.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the pleading
is to be construed in the non-movant’s favor and the allegations of facts accepted as true. See
Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008).
2.
A party may also present defenses by filing an answer to the complaint. When filing an
answer, Rule 8 requires a party to “state in short and plain terms its defenses to each claim asserted
against it” and “admit or deny the allegations asserted against it…” Fed. R. Civ. Pr. 8(b). A denial

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of an allegation is an attack on the substance of plaintiff’s prima facie case. It seeks “to disprove
one or all of the elements of a complaint.” Emmons v. S. Pac. Transp. Co., 701 F.2d 1112, 1118
(5th Cir. 1983) (internal quotation marks and citation omitted). It is the “equivalent of a defendant
saying, ‘I did not do it.’” F.T.C. v. Think All Pub.L.L.C., 564 F.Supp.2d 663, 665 (E.D. Tex. 2008).
3.
In contrast, an affirmative defense “raises matters outside the scope of plaintiff’s prima
facie case.” Instituto Nacional de Comercializacion Agricola v. Cont. Ill. Nat’l. Bank & Trust Co.,
576 F.Supp. 985, 991 (N.D. Ill. 1983) (quotations omitted). It is any set of facts other than those
alleged by the plaintiff which, if proven, would defeat or mitigate the legal consequences of the
defendant’s conduct for which the defendant would have the burden of proof. See Martin v.
Weaver, 666 F.2d 1013, 1019 (6th Cir. 1981) (“The burden of proving an affirmative defense by
a preponderance of the credible evidence is on the party asserting the defense.”). Rule 8(c) governs
affirmative defenses and provides:
(1) In General. In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including: accord and satisfaction; arbitration
and award; assumption of risk; contributory negligence; duress; estoppel;
failure of consideration; fraud; illegality; injury by fellow servant; laches;
license; payment; release; res judicata; statute of frauds; statute of limitations;
and waiver.
Fed. R. Civ. Pr. 8(c)(1).
The pleading standard for affirmative defenses is not consistent throughout federal district
courts. Some courts have held that affirmative defenses should be held to the heightened pleading
standard outlined in Bell Atlantic v. Twombly, requiring a complaint to contain “enough facts to
state a claim to relief that is plausible on its face.” 550 U.S. 554, 570 (2007); see Microsoft Corp.
v. Lutian, 2011 WL 4496531, at *2 (N.D. Ohio Sept. 27. 2011); HCRI TRS Acquirer, LLC v. Iwer,

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708 F.Supp. 2d 687, 691 (N.D. Ohio 2010); Shinew v. Wszola, 2009 WL 1076279, at *4-5 (E.D.
Mich. 2009). These courts have reasoned that
[W]hat is good for the goose is good for the gander and…it makes neither sense
nor is it fair to require a plaintiff to provide the defendant with enough notice that
there is a plausible, factual basis for her claim under one pleading standard and then
permit a defendant under another pleading standard simply to suggest that some
defense may possibly apply in the case.
Racick v. Dominion Law Associates, 270 F.R.D. 228, 233 (E.D. N.C. Oct. 6, 2010) (quotation
omitted). They have also noted that “[b]oilerplate defenses clutter the docket and…create
unnecessary work” in addition to increasing the amount of discovery. Safeco Ins. Co. of Am. v.
O’Hara Corp, 2008 WL 2558015, *1 (E.D. Mich. June 25, 2008).
However, other courts have declined to hold affirmative defenses to the heightened
Twombly and Iqbal standard. They reason that the standard is not applicable to affirmative defenses
because Rule 8(c) governing affirmative defenses is too dissimilar to Rule 8(a) governing
complaints. See First Nat. Ins. Co. of America v. Camps Services, Ltd., 2009 WL 22861, *2 (E.D.
Mich. Jan. 5, 2009) (“Twombly raised the requirements for a well-pled complaint under Fed. R.
Civ. P. 8(a)’s ‘short and plain statement’ requirement…No such language, however, appears
within Rule 8(c), the applicable rule for affirmative defenses.”) (citation omitted); Exclusively Cats
Veterinary Hosp., P.C. v. Pharm. Credit Corp., 2014 WL 4715532, at *3 (E.D. Mich. Sept. 22,
2014); Meyers v. Village of Oxford, 2019 WL 653807 (E.D. Mich. Feb. 15, 2019).
The heightened Twombly and Iqbal standard should, in the Court’s view, also apply to the
affirmative defense. Despite the differences in the language of Rule 8(a) and Rule 8(c), it is
reasonable to hold plaintiffs and defendants to the same heightened pleading standard. For similar
reasons, a defendant’s affirmative defense presents a claim like a plaintiff’s complaint.
Accordingly, both should be held to a reciprocal standard.

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C.
Plaintiff has filed a motion to strike Defendants’ affirmative defenses. ECF No. 34. Federal
Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pr. 12(f).
“A motion to strike an affirmative defense is properly granted when ‘plaintiffs would succeed
despite any state of the facts which could be proved in support of the defense.’” Meyers v. Village
of Oxford, 2019 WL 653807 at *1 (E.D. Mich. Feb. 15, 2019) (quoting Operating Engineers Local
324 Health Care Plan v. G&W Construction Co., 783 F.3d 1045 (6th Cir. 2015)). However, the
Sixth Circuit has also noted that “[m]otions to strike are viewed with disfavor and are not
frequently granted.” Operating Engineers Local 324 Health Care Plan 783 F.3d at 1050.
A motion to strike differs from a motion to dismiss. Affirmative defenses should not be
stricken for any of the bases articulated in Rule 12(b) because Plaintiff has not brought a motion
under Rule 12(b), but instead under 12(f). Accordingly, they are only stricken for the reasons
provided in Rule 12(f). This does not preclude Plaintiff from seeking dismissal of the defenses
later as provided under the Federal Rules of Civil Procedure.
II.
Affirmative defenses 2, 5, and 11 will not be stricken. The remaining nineteen affirmative
defenses will be stricken.
A.
2.

Some or all of Plaintiff’s claims are barred by the applicable statute of
limitations.

Federal Rule of Civil Procedure 8 provides, “[A] party must affirmatively state any
avoidance or affirmative defense, including…statute of limitations.” Fed. R. Civ. Pr. 8(c)(1). The

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second affirmative defense is a statute of limitations defense and accordingly, complies with Rule
8(c)(1).
5.

Plaintiff was advised of her rights, waived them and pled
responsible/guilty to the ordinance violations that are the subject of
Plaintiff’s Complaint.

The fifth affirmative defense will not be stricken because it pleads facts (presumably
Plaintiff’s waiver of her rights by paying her parking ticket) other than those alleged by the plaintiff
which, if proven, could defeat or mitigate the legal consequences of the Defendants’ conduct.
11.

Plaintiff has failed to mitigate her damages in this matter.

The eleventh affirmative defense presents an adequate defense because a plaintiff has a
duty to mitigate their damages. Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994)
(“In a §1983 case the plaintiff has a duty to mitigate damages.”).
B.
6.

That Defendant Hoskins is entitled to qualified immunity.

The sixth affirmative defense does not present an affirmative defense because qualified
immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth,
472 U.S. 511, 526, (1985). The doctrine protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, (1982). “Qualified immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009).

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The existence of qualified immunity turns on the question of whether a defendant’s action
violated clearly established law. Id. at 243–44. “This inquiry turns on the ‘objective legal
reasonableness of the action, assessed in light of the legal rules that were clearly established at the
time it was taken.’” Id. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614, (1999). “To be clearly
established, a right must be sufficiently clear ‘that every reasonable official would [have
understood] that what he is doing violates that right.’” Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012). “[E]xisting precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986).
Defendants have not pled how or why qualified immunity makes Defendant Hoskins
immune from suit. Such a plea of qualified immunity may be presented by motion, not as an
affirmative defense.
7.

Any damages Plaintiff claims to have suffered were the result of
Plaintiff’s own acts or actions, thereby barring Plaintiff’s claim in
whole or in part.

The seventh affirmative defense does not meet the Twombly and Iqbal standard because it
does not contain sufficient factual information. Defendants are presumably presenting some form
of a proximate cause or contributory negligence argument, but they do not furnish any facts to
support such a claim.
9.

Plaintiff does not have clean hands and, therefore, is not entitled to
equitable relief in this matter.

Presumably, Defendants are referring to the equitable principal of clean hands. The
Supreme Court has held that:

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“[H]e who comes into equity must come with clean hands.” This maxim is far more
than a mere banality. It is a self-imposed ordinance that closes the doors of a court
of equity to one tainted with inequitableness or bad faith relative to the matter in
which he seeks relief, however improper may have been the behavior of the
defendant…[W]hile equity does not demand that its suitors shall have led blameless
lives, as to other matters, it does require that they shall have acted fairly and without
fraud or deceit as to the controversy in issue.
Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814
(1945) (quotations and citations omitted).
Defendants provide no explanation or details concerning how Plaintiff is “tainted with
inequitableness or bad faith.” Like the seventh affirmative defense, the ninth lacks sufficient
information to give Plaintiff or the Court any notice as to what Defendants are actually contending.
12.

Plaintiff [sic] claims for injunctive relief are moot.

The twelfth affirmative defense is devoid of any factual information. It provides no insight
regarding Defendants’ opposition to Plaintiff’s claim for injunctive relief. Plaintiff’s Amended
Complaint asks the Court to “Enter an order for injunctive relief to halt the illegal processes and
procedures of Defendants in violation of the Fourth Amendment to the United States Constitution.”
ECF No. 9 at PageID.74 (emphasis added).
The twelfth affirmative defense does not explain the type of injunctive relief that
Defendants posit Plaintiff seeks nor does it explain why such relief is moot. It does not plead facts
other than those alleged by the plaintiff which, if proven, could defeat or mitigate the legal
consequences of the Defendants’ conduct. It is merely a legal conclusion.
C.
Affirmative defenses 13 and 29 relate to the Amended Complaint’s request for class
certification. The thirteenth affirmative defense provides:
13.

Plaintiff lacks standing as the named representative of a putative class
action.
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This does not meet the Twombly and Iqbal pleading standard because it merely cites a legal
conclusion that Plaintiff cannot qualify as a class representative under Rule 23. Rule 23 provides:
One or more members of a class may sue or be sued as representative parties on
behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the
class.
Fed. R. Civ. Pr. 23(a).
Defendants simply assert that Plaintiff does not qualify as a named representative of the
putative class action. They make no effort to explain their rationale or demonstrate that Plaintiff
does not meet the four criteria articulated in Rule 23.
More explanation is given in the twenty-ninth affirmative defense, but it is still deficient.
It provides:
29.

The Plaintiff’s claims for class certification are barred by the absence
of evidence of numerosity, the non-similarity and inconsistency of
questions of law and fact, the absence of typicality between Plaintiff’s
claims and those of the putative class, the absence of evidence Plaintiff
will fairly or adequately protect the interest of the class, and the
absence of evidence that maintenance of this action, as a class action, is
superior to any other method including of litigating these claims.

The affirmative defense references in passing the Rule 23 criteria. However, it is still devoid of
any, let alone the necessary, factual information.
D.

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Affirmative defenses 14, 16, 17, and 18 make arguments related to the issue of whether
chalking constitutes a search. The defenses provide:
14.

The Defendants have taken no action in trespass upon constitutionally
protected property rights to obtain any information which was not
openly available to the public.

16.

The proofs may show Defendants have not physically occupied private
property belonging to Plaintiff for the purpose of obtaining
information.

17.

The Plaintiff has no reasonable expectation of privacy in the exterior of
her vehicle and an examination of the exterior of Plaintiff’s vehicle or
license plate does not constitute a search.

18.

The visual observation of Plaintiff’s vehicle, tires and/or license plate
does not constitute a search.

The Sixth Circuit has already determined that the chalking was a search. Taylor v. City of
Saginaw, 922 F.3d 328, 332 (6th Cir. 2019) (“[Y]es, chalking is a search for Fourth Amendment
purposes.”). Despite this fact, affirmative defenses 14, 16, 17, and 18 all seek to establish that there
was no search. Such a conclusion would be in direct opposition to the law of the case as determined
by the Sixth Circuit. Accordingly, challenges to its conclusion will not be entertained.
E.
Affirmative defenses 19-26 are also unnecessary. All relate to exceptions to the warrant
requirement, but Defendants furnish no explanation of what they believe they need to prove or
intend to prove factually to prevail on these arguments. The affirmative defenses provide:
19.

The Plaintiff’s claims are barred by the “automobile” exception to the
warrant requirement.

20.

The Plaintiff’s claims are barred by the probability of criminal activity
and the individualized suspicion of wrongdoing, reasonable suspicion
and probable cause.

21.

The Plaintiff’s claims are barred by the “community caretaker”
exception to the warrant requirement.

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22.

The Plaintiff’s claims are barred by the hazard, traffic impediment and
public safety concerns, created by the illegal parking of her vehicle.

23.

The Plaintiff’s claims are barred by the exigent circumstance exception
to the warrant requirement.

24.

The Plaintiff’s claims are barred by the administrative search
exception to the warrant requirement.

25.

The Plaintiff’s claims are barred by consent to search.

26.

The Plaintiff’s claims are barred all [sic] by other exceptions to the
warrant requirement.

The Sixth Circuit concluded that further factual development was necessary to resolve the
narrow question of whether chalking a tire qualifies as one of the exceptions to the warrant
requirement. Defendants’ litany of potential exceptions to the warrant requirement is devoid of
any factual information and does not place Plaintiff or the Court on notice regarding the claims
Defendants are presenting. Such generalized pleading does nothing to assist the Plaintiff or the
Court in resolving the narrow issue that is before it on remand.
F.
Affirmative defense 31 is a generalized defense seeking to reserve all unpled defenses. It
provides:
31.

Defendants hereby gives notice that should discovery support them,
Defendants intend to rely on such other affirmative defenses as may be
applicable, including but not limited to after acquired evidence.

The thirty-first defense does not meet the standard of providing Plaintiff with fair notice of
Defendants’ defense. This “reservation to assert other unnamed defenses in the future does not
satisfy that standard.” U.S. ex rel. Robinson-Hill v. Nurses’ Registry and Home Health Corp., 2013
WL 1187000, at *3 (E.D. Ky. March 20, 2013); see also Meyers, 2019 WL 653807 at *6. Such a
general reservation of rights also subverts Federal Rule of Civil Procedure 15 which requires a

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party to obtain the opposing party’s consent or the court’s leave to amend its pleadings. Fed. R.
Civ. Pr. 15(a)(2); see also Paducah River Painting, Inc. v. McNational Inc., 2011 WL 5525938, at
*5 (W.D. Ky. Nov. 14, 2011). If Defendants wish to present new affirmative defenses in the future,
they may seek to amend their answer pursuant to Rule 15. However, they may not make a general
reservation to add additional affirmative defenses.
III.
Affirmative defenses 6, 7, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29, and
31 are deficient and will be stricken. Defendants were already granted an opportunity to remedy
these affirmative defenses, but did not do so.
Accordingly, it is ORDERED that Plaintiff’s motion to strike affirmative defenses, ECF
No. 34, is granted in part.
It is further ORDERED that affirmative defenses 6, 7, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21,
22, 23, 24, 25, 26, 29, and 31 within Defendant’s answer to Plaintiff’s amended complaint, ECF
No. 32, are STRICKEN. Affirmative defenses 2, 5, and 11 survive as pled.

Dated: January 23, 2020

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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