Meyers et al v. Oxford, Village of et al
Filing
47
ORDER Granting in Part and Denying in Part 35 Motion to Strike Affirmative Defenses. Signed by District Judge Denise Page Hood. (BGar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRUCE MEYERS,
KALLIE ROESNER-MEYERS,
and EUGENIA CALOCASSIDES,
Plaintiffs,
Case No. 17-cv-10623
HON. DENISE PAGE HOOD
v.
VILLAGE OF OXFORD, a Michigan
home-rule village; JOE YOUNG,
in his personal and official capacity
as Village Manager of the Village
of Oxford; SUE BOSSARDET, in her
personal and official capacity as President
of the Village of Oxford; and MICHAEL
SOLWOLD, in his official capacity only
as Acting Police Chief of the Village of
Oxford; ROBERT CHARLES DAVIS, in his
personal and official capacity as an administrative
officer (Village Attorney) of the Village of Oxford,
Defendants.
_________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE DEFENSES [#35]
I.
INTRODUCTION
Plaintiffs filed this cause of action on February 17, 2017, alleging that
Defendants violated their procedural due process rights under the Fourteenth
Amendment. Plaintiffs filed an Amended Complaint on March 8, 2017. In lieu of an
Answer to the Amended Complaint, Defendants filed a motion to dismiss. On August
31, 2017, the Court granted Defendants’ motion to dismiss because Plaintiffs were
volunteer reserve police officers. The Sixth Circuit reversed and remanded the case
to this Court, holding that Plaintiffs had a liberty interest for which they were entitled
to a name-clearing hearing. The case was remanded to this Court on October 12,
2018.
On November 20, 2018, Defendants timely filed an Answer to the Amended
Complaint with Affirmative Defenses. Dkt. No. 34. Plaintiffs promptly filed a Motion
to Strike Defendants’ Affirmative Defenses (“Motion to Strike”). Dkt. No. 35.
Defendants filed a response to the Motion to Strike, to which Plaintiffs replied. For
the reasons that follow, the Motion to Strike is granted in part and denied in part.
II.
BACKGROUND
Plaintiffs brought this case after being “removed from their role[s] as reserve
officer[s]” by the Defendants on January 10, 2017. Dkt. No. 7. Pg. ID 59. Plaintiffs’
three-count Amended Complaint includes the following claims: (1) violation of
Procedural Due Process rights under the Fourteenth Amendment for denial of a name
clearing hearing against Defendants Joe Young, Sue Bossardet, and Robert Charles
Davis; (2) violation of Procedural Due Process rights under the Fourteenth
2
Amendment for denial of a name clearing hearing against Defendant Village of
Oxford; and (3) Declaratory Relief against all Defendants.
As stated by the Sixth Circuit:
The following facts are set forth in the amended complaint and
accepted as true for purposes of [this Order]. See Crosby v. Univ. of Ky.,
863 F.3d 545, 549 (6th Cir. 2017), cert. denied, 138 S. Ct. 741 (2018)
(citing Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir.
2016)). [Plaintiffs] served as reserve officers—a volunteer position—for
the Village of Oxford Police Department. Foreseeing a need for
additional patrols, then-Police Chief Michael Neymanowski took steps
to create a horse-mounted unit, of which [Plaintiffs] would be members.1
On September 15, 2016, Neymanowski sent a letter to the organizers of
the Mounted Police Colloquium stating:
My agency is in the process of creating the first Police
Reserve Officer[s] Horse Mounted Unit. The members of
this Mounted Unit will consist of Officers Kallie Roesner,
Dr. Bruce Meyers and Eugenia Calocassides. It would be
an honor to have them represent the Oxford Village Police
Department for your upcoming Mounted Police
Colloquium.2
Around this time, the Village Manager obtained liability insurance for
the horse-mounted unit.
[Plaintiffs] participated in the Mounted Police Colloquium as
representatives of the Village of Oxford and were successful in several
competitions. At the Oxford Village Council’s October 11, 2016
meeting, Neymanowski “presented [Plaintiffs] to the Village Council as
members of the Village’s new Reserve Officer[s] Horse Mounted Unit,”
and the Council “publicly expressed gratitude and approval of
[Plaintiffs’] activities.”
[Plaintiffs] then joined the Michigan Multi-Jurisdictional Mounted
Police Drill Team, again representing the Village of Oxford. When the
3
Multi-Jurisdictional Team was unexpectedly invited to be a part of the
inauguration parade and ceremonies for then-President-elect Trump,
Neymanowski confirmed in a letter to the Multi-Jurisdictional Team that
[Plaintiffs] would participate, and [Plaintiffs] “eagerly prepared . . .
themselves and their horses to represent the Village of Oxford and its
police department” at the inauguration. After a local newspaper reported
[Plaintiffs’] anticipated involvement in the inaugural festivities,
however, Village Council members “became unglued by this news” and
proceeded at their next meeting to question [Plaintiffs’] “reputation,
good name, honor, and integrity . . . even to the point of accusing
[Plaintiffs] of violating the penal law by impersonating police officers.”
The Council then voted to remove [Plaintiffs] as reserve officers and to
issue communications disavowing any Council approval or authorization
of the horse-mounted unit. [Plaintiffs] were not provided notice and a
hearing prior to the Council’s actions, nor did they receive a
name-clearing hearing upon request. They sued the Village of Oxford,
Village Manager Joe Young, Village Attorney Robert Charles Davis,
Village President Sue Bossardet, and acting Village Police Chief
Michael Solwold, alleging violations of procedural due process under the
Fourteenth Amendment.
____________
1
Neymanowski’s name is apparently misspelled in the amended
complaint.
2
[Plaintiffs] describe the Mounted Police Colloquium as an annual
multi-day event at Kentucky Horse Park that entails “training and
competitions . . . for and by police mounted units” in “equitation,
jumping, crowd control, and sensory techniques.”
Meyers v. Village of Oxford, 739 F.App’x 336, 337-38 (6th Cir. 2018).
III.
ANALYSIS
A.
Applicable Law
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
4
scandalous matter.” 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.” Operating Eng’rs Local 324 Health Care Plan v. G & W
Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015). See also Saks v. Franklin Covey Co.,
316 F.3d 337, 350 (2nd Cir. 2003) (an affirmative defense is something specific – “a
defendant’s assertion raising new facts and arguments that, if true, will defeat the
plaintiff’s or prosecution’s claim, even if all allegations in the complaint are true.”).
As another Eastern District of Michigan Judge recently stated, there are two
viewpoints regarding the specificity required when asserting an affirmative defense.
See Exclusively Cats Veterinary Hosp., P.C. v. Pharm. Credit Corp., No. 13-CV14376, 2014 WL 4715532, at **2–3 (E.D. Mich. Sept. 22, 2014). In Exclusively Cats,
the court reasoned:
The Sixth Circuit has not yet determined whether the heightened
pleading standard applicable to claims for relief also applies to
affirmative defenses. 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). Defendant maintains that, in the
absence of Sixth Circuit guidance to the contrary, Lawrence still
controls. See Hahn v. Best Recovery Servs., LLC, No. 10–12370, 2010
5
WL 4483375, at *2 (E.D. Mich. Nov. 1, 2010).
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.
District courts in this Circuit are divided over the application of Twombly
and Iqbal to affirmative defenses. Compare, e.g., Safeco, 2008 WL
2558015,1 at *1 (applying Twombly standard to affirmative defenses)
with 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 and citing cases). The primary reasons
courts give for applying the heightened standard to affirmative defenses
are the desirability of avoiding unnecessary discovery costs and the
similarity in language between Rules 8(a) and 8(b). See HCRI TRS
Acquirer, LLC v. Iwer, 708 F.Supp.2d 687, 690–91 (N.D. Ohio 2010).
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”
1
Plaintiffs extensively rely on Safeco in arguing that affirmative defenses need to be
pleaded in compliance with Twombly and Iqbal. See Dkt. No. 35, PgID 562-66 (citing Safeco
Ins. Co. of America v. O’Hara, 2008 WL 2558015 (E.D. Mich. June 25, 2008)). Plaintiffs also
cite numerous other cases in which courts have reached the same conclusion as the Safeco court.
See Dkt. No. 35, PgID 562-64.
6
(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 (emphasis in original). For the same
reasons espoused by the Exclusively Cats court, this Court is persuaded that it is most
appropriate to apply the fair notice pleading standard when determining whether
Defendants sufficiently pleaded their affirmative defenses.
B.
Analysis
Although there are some exceptions, it is generally understood that the failure
to allege an affirmative defense in the first responsive pleading may result in a waiver
of the defense. See Horton v. Potter, 369 F.3d 906, 911-12 (6th Cir. 2004). The
purpose of such a general rule is to “give the opposing party notice of the affirmative
defense and a chance to rebut it.” Moore, Owen, Thomas & Co. v. Coffey, 992 F2d
1439, 1445 (6th Cir 1993). Thus, at the outset of a case, without the luxury of time or
the benefit of discovery, defendants are required to plead all of their affirmative
7
defenses or risk waiving those that are not pled along with the answer. See Paducah
River Painting, Inc. v. McNational, Inc., 2011 WL 5525938, at *2 (W.D. Ky. Nov. 14,
2011); Lane v. Page, 272 F.R.D. 581, 596 (D.N.M. 2011) (“Plaintiffs can prepare their
complaints over years, limited only by the statute of limitations, whereas defendants
have only twenty-one days to file their answers.”). Taking those considerations into
account, the Court now turns to Plaintiffs’ challenges to Defendants’ affirmative
defenses.
The Court first declines to adopt Plaintiffs’ argument that all of Defendants’
affirmative defenses should be stricken for failure to meet the Twombly standard. As
stated above, the Court concludes that the fair notice pleading standard governs this
case. The Court finds that each of Defendants’ 26 affirmative defenses gives
Plaintiffs fair notice of the defenses asserted by Defendants.
A.
Affirmative Defenses 1, 10, and 12-25
The Court next rejects Plaintiffs’ assertion that Defendants’ affirmative
defenses 1, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 (1, 10, and 1225) should be struck because they are not “affirmative defenses” at all. Plaintiffs
claim that those “vaguely pled affirmative defenses” should be stricken as nothing
more than claims that Plaintiffs have not “proved essential element(s) of a claim . . .”
Dkt. No. 35, PgID 569. Plaintiffs rely on Johnson v. City of Saginaw, 2018 U.S. Dist.
8
LEXIS 169236, at *9 (E.D. Mich. Aug. 30, 2018) (citations omitted) (“An assertion
that Plaintiff has not proved essential elements of [a] claim is not an affirmative
defense and should be stricken.”). Plaintiffs do not otherwise offer any specific
analysis with respect to how or why any of Defendants’ affirmative defenses 1, 10, or
12-25 are deficient.
Rule 8(c) requires a defendant to affirmatively state in its answer “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.” Contrary to
Plaintiffs’ suggestion, the Court concludes that the list of affirmative defenses in Rule
8(c) is not exhaustive. See, e.g., Sony/ATV Music Publishing LLC v DJ Miller Music
Distributors, Inc., 2011 WL 4729811, at *14 (M.D. Tenn. 2011); F.R.Civ.P. 8(c)(1)
(“In responding to a pleading, a party must affirmatively state any avoidance or
affirmative defense, including ...” (emphasis added)).
As Defendants are not limited to the avoidance and affirmative defenses
identified in Rule 8(c) and Plaintiffs have not explained how any of Defendants’
affirmative defenses 1, 10, and 12-25 are deficient, the Court DENIES Plaintiffs’
request to strike affirmative defenses 1, 10, and 12-25.
9
B.
Affirmative Defenses 4-9 and 11
Plaintiffs assert that Defendants’ affirmative defenses 4, 5, 6, 7, 8, 9, and 11
lack any factual or legal basis. Defendants concede that affirmative defense 4 (statute
of limitations) is not warranted at this time, and they have agreed to withdraw it.
Accordingly, the Court will grant Plaintiffs’ Motion to Strike as to affirmative defense
4.
Affirmative defense 5 seeks a set-off from any collateral sources. Plaintiffs
contend that there are no known or pled collateral sources, so there is no legal or
factual basis to make this affirmative defense. Affirmative defense 6 relies upon the
“doctrines of laches, waiver, release, estoppel, and unclean hands.” Plaintiffs argue
there is no factual or legal basis to make this collective group of affirmative defenses.
Affirmative defense 7 is that Plaintiffs failed to join all necessary parties and
claims. Plaintiffs assert that all necessary parties are present and that they have
pleaded a valid plausible claim, such that there is no legal or factual basis to make this
affirmative defense. Affirmative defense 8 is based on “governmental immunity,”
which Plaintiffs contend is a state-law tort defense. See Johnson, 2018 U.S. Dist.
LEXIS 169236, at *9 (citation omitted). Plaintiffs represent that no state-law tort
claims have been asserted, so the governmental immunity defense does not apply.
Affirmative defense 9 asserts qualified immunity. Plaintiffs argue that qualified
10
immunity is only available for individual capacity claims, as “qualified immunity…
is unavailable to… the official acting in his official capacity.” Everson v. Leis, 556
F.3d 484, 501 fn.7 (6th Cir. 2009) (citing Hall v. Tollett, 128 F.3d 418, 430 (6th Cir.
1997)). As the Sixth Circuit affirmed dismissal of the individual capacity claims and
remanded all official capacity claims in this case, see Meyers v. Village of Oxford, 739
F.App’x 336, 342 (6th Cir. 2018), Plaintiffs state that the qualified immunity defense
is not applicable to Defendants.
In affirmative defense 11, Defendants claim that Plaintiffs have not exhausted
administrative remedies and/or other post-deprivation procedures. Plaintiffs contend
that exhaustion is not required for Section 1983 claims, Felder v. Casey, 487 U.S. 131,
147 (1988); Patsy v. Bd. of Regents for Florida, 457 U.S. 496, 500-501, 516 (1982);
Monroe v. Pape, 365 U.S. 167, 183 (1971), and the exhaustion defense is not
applicable.
Defendants counter that affirmative defenses 5-9 and 11 are properly pleaded
because the positions raised in them: (a) are self-explanatory; (b) give Plaintiffs fair
notice of Defendants’ positions; and (c) no additional facts are necessary to
sufficiently plead them.
The Court finds that Defendants have ignored the fact that no state law claims
were filed in this case. As set forth above, Plaintiffs’ three-count Amended Complaint
11
includes the following claims: (1) violation of Procedural Due Process rights under
the Fourteenth Amendment for denial of a name clearing hearing against Defendants
Joe Young, Sue Bossardet, and Robert Charles Davis; (2) violation of Procedural Due
Process rights under the Fourteenth Amendment for denial of a name clearing hearing
against Defendant Village of Oxford; and (3) Declaratory Relief against all
Defendants. None of these claims are based on state law, such that the governmental
immunity defense relied upon by Defendants in affirmative defense 8 could apply, see
Johnson, 2018 U.S. Dist. LEXIS 169236, at *9 (citation omitted); M.C.L. § 691.1407,
and Defendants have not indicated that there is any other governmental immunity
upon which they rely. The Court will grant Plaintiffs’ Motion to Strike with respect
to affirmative defense 8.
The Court next finds that Defendants ignore an undisputed fact in this case, a
fact of which the Court can take judicial notice: the Sixth Circuit has dismissed all
individual capacity claims against Defendants. See Meyers, 739 F.App’x at 342. As
qualified immunity applies only with respect to claims for which a defendant may be
personally liable, Everson, 556 F.3d at 501 n.7, qualified immunity is now an
insufficient and immaterial defense to the remaining official capacity claims.
Accordingly, the Court will grant Plaintiffs’ Motion to Strike with respect to
affirmative defense 8.
12
The Court is not persuaded that affirmative defenses 5-7 and 11 should be
stricken. To the extent that Plaintiffs argue there is no factual basis for affirmative
defenses 5-7 and 11, the Court declines Plaintiffs’ argument. Plaintiffs had time to
ascertain information before filing their Complaint and their Amended Complaint, but
at this stage of the proceedings, discovery has not commenced. The facts relevant to
affirmative defenses 5-7 and 11 are not known to Defendants, even if they may be
known to Plaintiffs, so striking such defenses for lack of a factual basis is
unwarranted. See, e.g., Paducah River Painting, 2011 WL 5525938, at *2. And, a
motion to strike an affirmative defense is properly granted only when “plaintiffs
would succeed despite any state of the facts which could be proved in support of the
defense.” Local 324 Health Plan, 783 F.3d at 1050. Plaintiffs’ argument with respect
to each affirmative defense is based on the existence or absence of certain facts.
Plaintiffs do not show how any of affirmative defenses 5-7 or 11 would fail no matter
what the facts are. Affirmative defenses 5-7 and 11 will not be stricken.
Accordingly, the Court GRANTS Plaintiffs’ request to strike affirmative
defenses 4, 7, and 8 and DENIES Plaintiffs’ request to strike affirmative defenses 5-7
and 11.
C.
Affirmative Defense 26
Plaintiffs argue that affirmative defense 26 (“Defendants reserve the right to
13
amend their Affirmative Defenses through trial”) is improper because it subverts Rule
15, which requires a party to move for leave to amend if it should desire to amend its
pleadings going forward. Defendants do not specifically address Plaintiffs argument
regarding affirmative defense 26.
The Court concludes that Plaintiffs are correct. Affirmative defense 26 (a
“reservation to assert other unnamed defenses in the future”) does not give fair notice
of the nature of the defense. See United States ex rel. Robinson-Hill v. Nurses’
Registry and Home Health Corp., 2013 WL 1187000, at *3 (E.D. Ky. Mar. 20, 2013)
(citing Lawrence, 182 F.App’x at 456). And, absent leave of the Court (or stipulation
of the parties), Defendants will not be able to amend their affirmative defenses (or any
other pleadings). See, e.g., Johnson, 2018 U.S. Dist. LEXIS 169236, at *10-11 (citing
Paducah River Painting, 2011 WL 5525938, at *5).
Accordingly, the Court
GRANTS Plaintiffs’ Motion to Strike with respect to affirmative defense 26.
IV.
CONCLUSION
Accordingly, and for the reasons stated above,
IT IS ORDERED that Plaintiffs’ Motion to Strike Affirmative Defenses [Dkt.
No. 35] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Defendants’ Affirmative Defenses 4, 7, 8,
and 26 are STRICKEN.
14
IT IS FURTHER ORDERED that Defendants’ Affirmative Defenses 1-3, 5-6,
and 9-25 shall remain.
IT IS ORDERED.
Dated: February 15, 2019
s/Denise Page Hood
DENISE PAGE HOOD
CHIEF JUDGE, U.S. DISTRICT COURT
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?