Nexterra Systems Corp. v. DeMaria Building Company, Inc.
MEMORANDUM AND ORDER DENYING PLAINTIFFS MOTION TO STRIKE AFFIRMATIVE DEFENSES [Doc. 11]. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NEXTERRA SYSTEMS CORP.,
Case No. 16-13454
DEMARIA BUILDING COMPANY, INC.,
HON. AVERN COHN
MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
AFFIRMATIVE DEFENSES (Doc. 11)1
This is a contract case. Plaintiff and defendant are a subcontractor and a
contractor on a construction project for remodeling a building for the Veterans Affairs in
Battle Creek, Michigan. Plaintiff designed and supplied a boiler for installation by
defendant. Plaintiff says it performed its obligations and defendant has refused to make
the final payment on the bolier. Defendant essentially says that the boiler is defective.
Before the Court is plaintiff’s motion under Fed. R. Civ. P. 12(f) to strike
defendant’s first, second, fifth, sixth, seventh, and eighth affirmative defenses.2 For the
reasons that follow, the motion is DENIED.
II. Legal Standard
Upon review of the parties’ papers, the Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
Defendant has agreed to strike its first and eighth affirmative defenses.
Under Fed. R. Civ. P. 12(f) of the Federal Rules of Civil Procedure, “[t]he court
may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). An affirmative defense is
insufficient where “as a matter of law, the defense cannot succeed under any
circumstances.” Specialized Pharm. Servs., LLC v. Magnum Health & Rehab of Adrian,
LLC, No. 12–12785, 2013 WL 1431722, at *5–6 (E.D. Mich. Apr. 9, 2013).
Striking “is a drastic remedy” that “should be sparingly used by the courts.”
Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.1953).
“The motion to strike should be granted only when the pleading to be stricken has no
possible relation to the controversy.” Id. Ultimately, the decision to strike a pleading is
firmly within the discretion of the court.” Spizizen v. Nat'l City Corp., No. 09–11713,
2010 WL 419993, at *2 (E.D. Mich. Feb.1, 2010) (citation omitted).
As an initial matter, plaintiff argues that the affirmative defenses fail to meet the
general pleading requirements under Fed. R. Civ. P. 8 as well as the requirements of
Twombly3 and Iqbal.4 The Sixth Circuit has not yet determined whether the heightened
pleading standard under Twombly and Iqbal also applies to affirmative defenses.
District courts in this district are divided over the issue. Compare, e.g., Vision Info.
Techs., Inc. v. Vision IT Servs. USA, Inc., 156 F. Supp. 3d 870, 877 (E.D. Mich. 2016)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
and Rehab Sols., Inc. v. St. James Nursing & Physical rehab. Ctr., Inc., 2014 WL
6750590 (E.D. Mich. Dec. 1, 2014) (applying Twombly and Iqbal standard to affirmative
defenses) with Exclusively Cats Veterinary Hosp., P.C. v. Pharm. Credit Corp., 2014
WL 4715532 (E.D. Mich. Sept. 22, 2014) and Int'l Outdoor, Inc. v. City of Southgate, No.
11–14719, 2012 WL 2367160, at *7–9 (E.D. Mich. Apr. 6, 2012) (declining to apply
Twombly and Iqbal to affirmative defenses).
Looking at the divergent authority, the better view is that Twombly and Iqbal do
not apply to affirmative defenses. The district court in Exclusively Cats persuasively
. . . Defendant cites Lawrence v. Chabot, a case decided before Twombly
and Iqbal, in which the Sixth Circuit upheld a magistrate judge's refusal to strike
affirmative defenses under the fair notice standard. 182 F. App'x 442, 456–57
(6th Cir.2006) (“An affirmative defense may be pleaded in general terms and will
be held to be sufficient ... as long as it gives plaintiff fair notice of the nature of
the defense”). In this regard, the Sixth Circuit (again pre-Twombly and Iqbal )
has held the affirmative defense “Plaintiffs' claims are barred by the doctrine of
res judicata” sufficient under Rule 8(c). Davis v. Sun Oil Co., 148 F.3d 606, 612
(6th Cir.1998). . . .
Another Sixth Circuit case, Montgomery v. Wyeth, 580 F.3d 455, 467–68
(6th Cir.2009), lends support to defendant's position. In Montgomery, decided
after both Twombly and Iqbal, the court held that “[t]he Federal Rules of Civil
Procedure do not require a heightened pleading standard for a statute of repose
defense.” Montgomery, 580 F.3d at 468. The court went on to cite Rule 8(b)(1)'s
requirement that a party “state in short and plain terms its defenses to each
claim,” as well as the fair notice standard in Conley v. Gibson, 355 U.S. 41, 47,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Montgomery, 580 F.3d at 468.
Courts declining to apply the heightened pleading standard to affirmative
defenses have tended to focus on the difference in language of Rules 8(a) and
8(b), or on the fact that the holdings in Twombly and Iqbal were limited to Rule
8(a). As to language, Rule 8(a) requires a “short and plain statement of the claim
showing the pleader is entitled to relief” (emphasis added), while Rule 8(b) only
requires a statement “in short and plain terms” of “defenses to each claim.” See
Iqbal, 556 U.S. at 679 (stating that “where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to relief” (internal
quotation marks omitted)). Moreover, as at least one other decision in this
district has pointed out, Rule 8(c) governs affirmative defenses and contains no
language similar to that in Rule 8(a). First Nat. Ins. Co. of America v. Camps
Servs., Ltd., No. 08–12805, 2009 WL 22861, at *2 (E.D. Mich. Jan.5, 2009).
In sum, controlling Sixth Circuit law and the language of the applicable
rules weigh against application of Twombly and Iqbal 's heightened pleading
standard to defendant's affirmative defenses here. The policy rationale of
containing discovery costs, while undeniably important, is not enough to tip the
scales in the other direction. The Court will therefore apply the fair notice
pleading standard in determining whether defendant's affirmative defenses merit
a more definite statement under Rule 12(e) or striking under Rule 12(f).
Exclusively Cats, 2014 WL 4715532 at * 2-3.
The affirmative defenses at issue here state as follows:
That Plaintiff, upon information and belief, has failed to mitigate damages.
That the Defendant is entitled to offset all direct and proximately caused
damages by virtue of the Plaintiff’s breach of contract including, but not
limited to, failing to provide a boiler that met the performance
specifications of the Veterans Administration and the subcontract; failing
to timely repair its defective products and work including defects identified
during the warranty period; failing to deliver the boiler timely’ and other
That the acts, errors and omissions of the Plaintiff in negligently failing to
properly design and/or manufacture the boiler and related systems which
did fail and breakdown resulting in proximately caused damages and a
cause of action in accordance with MCL 600.2945 et seq.
That the Plaintiff’s claims and defenses to the defects and the breach of its
warranties is barred by the doctrines of waiver and/or estoppel since they
modified the boiler after it was installed because it failed to meet the
performance requirements and standards as well as possible other
(Doc. 8 at p. 6-7).
Each of these defenses meet the fair notice requirement. None are so vague or
ambiguous that plaintiff cannot reasonably prepare a response nor are any of the
defenses unable to succeed under any circumstances. Neither a more definite
statement nor striking is justified. To the extent plaintiff desires additional information
regarding any defense, it can be obtained through appropriate discovery. Finally, the
Court is constrained to note that the instant motion has served to move the case more
laterally than forward.
UNITED STATES DISTRICT JUDGE
Dated: January 24, 2017
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