Equal Employment Opportunity Commission v. LHC Group Inc.
ORDER denying 11 Motion to Strike 8 Answer to Amended Complaint Signed by Chief District Judge Louis Guirola, Jr on 07/07/2012 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:11CV355-LG-JMR
LHC GROUP INC., d/b/a
GULF COAST HOME CARE
ORDER DENYING MOTION TO
STRIKE AFFIRMATIVE DEFENSES
BEFORE THE COURT is the Motion  to Strike Affirmative Defenses filed
by Plaintiff, the Equal Employment Opportunity Commission. The Defendant,
LHC Group, Inc., has responded. The claims asserted in the EEOC’s Amended
Complaint relate to alleged disability discrimination in violation of the Americans
with Disability Act. Specifically, the EEOC has brought suit on behalf of one
individual, Kristy Michele Sones, alleging failure to accommodate and wrongful
termination based upon an alleged disability.
Soon after LHC Group filed its Answer to the EEOC's First Amended
Complaint, the EEOC moved to strike LHC Group's Third, Sixth, Seventh, Twelfth,
Eighteenth, Twenty-Third, and Twenty-Sixth Affirmative Defenses pursuant to
Fed. R. Civ. P. 12(f). The EEOC contends these affirmative defenses are invalid as
a matter of law, inapplicable to this action, and/or defective as they are
insufficiently pled and do not give notice of the defense claimed. LHC Group argues
that its affirmative defenses give the EEOC all the notice it is due, and it is
improper to require it to prove its defenses prior to any discovery taking place. The
Court finds that LHC Group’s Third, Sixth, Seventh, Twelfth, Eighteenth, and
Twenty-Third affirmative defenses are adequately pled. The Twenty-Sixth
Affirmative Defense is too vague to give the EEOC fair notice, but the EEOC does
not attempt to show how it is prejudiced by this inadequacy. The Court will
therefore exercise its discretion to deny the Motion to Strike in its entirety.
THE LEGAL STANDARD
Motions to strike defenses are disfavored in the Fifth Circuit and
infrequently granted. See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982); Augustus v. Bd. of Public
Instruc. of Escambia Cnty., Fl., 306 F.2d 862, 868 (5th Cir. 1962); Fed. Deposit Ins.
Corp. v. Niblo, 821 F. Supp. 441, 449 (N.D. Tex. 1993) ("Both because striking
portion of a pleading is a drastic remedy, and because it often is sought by the
movant simply as a dilatory tactic, motions under Rule 12(f) are viewed with
disfavor and are infrequently granted."). Although Rule 12 provides that district
courts may strike defenses or other matters from pleadings under certain
circumstances, this discretion should be exercised sparingly because striking a
defense is such a "drastic remedy." See In re Chinese Mfr. Drywall Prods. Liab.
Litig., 680 F. Supp. 2d 780, 788 (E.D. La. 2010). When there are disputed questions
of law or fact, the court should leave the sufficiency of the allegations for
determination on the merits. Solis v. Bruister, No. 4:10cv77-DPJ-JKB, 2012 WL
776028, at *7 (S.D. Miss. Mar. 8, 2012) (“Even when addressing a pure question of
legal sufficiency courts 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.”). Additionally, a motion to strike should not be granted unless the moving
party demonstrates that it would be prejudiced otherwise. See Global ADR, Inc. v.
City of Hammond, No. 03-457, 2003 WL 21146696, *1 (E.D. La. May 15, 2003)
(denying plaintiff's motion to strike because the pleadings made a legitimate
dispute and plaintiffs made no showing of prejudice).
The underlying premise of the EEOC's motion is that the Supreme Court’s
decisions in Twombly and Iqbal require LHC Group to plead its defenses with
specific factual assertions and that stating defenses in short and plain statements of
affirmative defenses is improper. There is no guidance from the Fifth Circuit Court
of Appeals on this issue, and the district courts are split. A majority of courts have
concluded that the plausibility standard articulated in Twombly and Iqbal applies
to the sufficiency of affirmative defenses. See, e.g. Vargas v. HWC Gen. Maint.,
LLC, No. H-11-875, 2012 WL 948892, at *2 (S.D. Tex. Mar. 20, 2012). The rationale
is the similarity of the language of Fed. R. Civ. P. 8(a) and (b), which require a
“statement” or for the pleader to “state” its claim, along with the principle that
imposing standard pleading requirements would ensure fair notice of claims and
defenses. See Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, 536 (D.
A minority have concluded that Twombly and Iqbal only addressed the
pleading standard applicable to complaints under Rule 8(a)(2), and not affirmative
defenses under Rules 8(b) and (c). See, e.g., Florida v. DLT 3 Girls, Inc., No.
4:11-CV-3624, 2012 WL 1565533, at *2 (S.D. Tex. May 2, 2012). Generally, these
courts rely on differences in the Rule 8 language. While Rule 8(a) requires “a short
and plain statement of the claim showing that the pleader is entitled to relief,”
neither of the rules pertaining to affirmative defenses requires that the pleader
“show” anything. Rule 8(b) requires defenses to be “state[d] in short and plain
terms;” Rule 8(c) requires that affirmative defenses be “affirmatively state[d].”
Thus, unlike the language of Rule 8(a)(2) examined by the Supreme Court in
Twombly, Rules 8(b) and (c) do not impose a burden on the pleading party to show
an entitlement to relief. See Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1257-58
(D. Kan. 2011).
The Court agrees with the minority view on this issue, primarily because it
appears that different pleading standards are imposed by Rules 8(a), (b) and (c).
But in addition, Fed. R. Civ. P. 84 provides that the "forms in the Appendix suffice
under these rules and illustrate the simplicity and brevity that these rules
contemplate." Fed. R. Civ. P. 84. Form 30 in the Appendix of Forms sets forth an
example affirmative defense: "The complaint fails to state a claim upon which relief
can be granted." Fed. R. Civ. P. Form 30. “The brief and simple nature of this
language indicates that no more detail is required of a defendant in an answer.”
Falley, 787 F. Supp. 2d at 1258; see also Tyco Fire Prods. LP v. Victaulic Co., 777 F.
Supp. 2d 893, 900 (E.D. Pa. 2011) ("[A]s the undetailed recitations of affirmative
defenses illustrated in Form 30 show, [it] is not an exacting standard even remotely
approaching the type of notice required of a claim under Twombly and Iqbal.")
Also, as a practical matter, although there is a need "for a more factual
understanding of a claim as to permit the formulation of a response, a party served
with an affirmative defense is generally not required or permitted to file any
responsive pleading at all. The need for notice of an affirmative defense is therefore
diminished considerably." Tyco Fire Prods., 777 F. Supp. 2d at 901 (citation
omitted). After all, "[p]roviding knowledge that the issue exists, not precisely how
the issue is implicated under the facts of a given case, is the purpose of requiring
averments of affirmative defenses." Id. (citing N.H. Ins. Co. v. Marinemax of Ohio,
Inc., 408 F. Supp. 2d 526, 529 (N.D. Ohio 2006)).
Finally, the federal rules require defendants to assert any affirmative defense
that may be applicable. Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999).
Accordingly, defendants must assert defenses out of an abundance of caution to
avoid the argument that meritorious defenses should later be considered waived.
Id. (failing to plead a defense constitutes waiver); Lacroix v. Marshall Cnty., Miss.,
No. 3:07CV119-B-A, 2009 WL 3246671 (N.D. Miss. Sept. 30, 2009) (denying
plaintiff's motion to strike and reasoning that "[t]he defendants were required to
plead their affirmative defenses or potentially waive such defenses under the rules
of this court, and they were entitled to assert any available defenses."); Baum v.
Faith Techs., Inc., No. 10-CV-0144-CVE-TLW, 2010 WL 2365451, at *3 (N.D. Okla.
June 9, 2010) ("[I]t would be unreasonable to expect defendants to be aware of all
the necessary facts or even to know for sure whether a particular affirmative
defense is applicable, given that discovery has not yet occurred and the fact that
defendants may waive affirmative defenses that are not plead.") (citing Wanamaker
v. Albrecht, 99 F.3d 1151 (10th Cir. 1996)); 5 WRIGHT & MILLER, FEDERAL PRACTICE
& PROCEDURE § 1271 (3d ed. 2010) ("[I]t is advisable for the defendant to allege
affirmatively any new matter he or she believes may not be embraced by the
pleadings. ... [A] defendant will not be penalized for doing so and he will have the
advantage of immunizing … against a possible waiver of the defense.").
For all of these reasons, the Court will apply the Fifth Circuit’s longstanding
fair notice standard, which requires a defendant to “plead an affirmative defense
with enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the
defense that is being advanced. We acknowledge that in some cases, merely
pleading the name of the affirmative defense . . . may be sufficient.” Woodfield, 193
F.3d at 362 (5th Cir. 1999). (citations and footnotes omitted).
The Court finds that, with the exception of the Twenty-Sixth Affirmative
Defense, LHC Group has adequately pled its affirmative defenses under Rules 8(b)
and (c) to put the EEOC on notice of those defenses.1 The Twenty-Sixth defense
states: “Plaintiff’s claims are barred, in whole or in part, by additional affirmative
defenses and after acquired evidence that may arise during the proceedings.” This
is insufficient to give the EEOC fair notice of any particular defense. However, the
EEOC does not attempt to show how it will be prejudiced if the defense is not
stricken. The EEOC is not entitled to have a non-prejudicial affirmative defense
To the extent that the EEOC argues that certain affirmative defenses are
The sufficiently stated affirmative defenses are:
Third: “Plaintiff’s claims for punitive damages are violative of the
constitutional safeguards due Defendant under the United States and
Sixth: “Plaintiff’s claims are barred, in whole or in part, by the
doctrines of laches, waiver or estoppel.”
Seventh: “Plaintiff’s claims are barred, in whole or in part, by
applicable statutes of limitations.”
Twelfth: “Plaintiff’s claims are barred, in whole or in part, because
Sones’ employment with Defendant was at-will. Either Sones or
Defendant could terminate Sones’ employment relationship at any
time, with or without notice, with or without cause.”
Eighteenth: “Defendant has a well disseminated and consistently
enforced policy against harassment or discrimination, and a
reasonable and available procedure to handle complaints. To the
extent Sones failed to use, or otherwise misused, such procedures,
Plaintiff’s claims are barred, pursuant to Ellerth/Faragher.
Twenty-Third: “Plaintiff’s claims are barred, in whole or in part, by the
exclusive remedy provisions of the Mississippi Workers’ Compensation
insufficient because they are not valid legal defenses or are inapplicable to this
action, the Court finds the Motion to be premature. When the EEOC filed its
Motion, LHC Group had just answered the Amended Complaint and no discovery
had taken place. It is too early in the litigation to be certain that any of the
challenged affirmative defenses are invalid or inapplicable. Considering that
motions to strike under Rule 12(f) are generally disfavored and within the Court’s
discretion, the Court declines to exercise its discretion at this time to strike LHC
Group’s affirmative defenses.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion  to
Strike Affirmative Defenses filed by Plaintiff, the Equal Employment Opportunity
Commission, is DENIED.
SO ORDERED AND ADJUDGED this the 7th day of August, 2012.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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?