Lakeside Roofing Company et al v. Nixon et al

Filing 64

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Strike Affirmative Defenses are GRANTED, in part, and DENIED, in part, in accordance with the foregoing. IT IS FURTHER ORDERED that Defendants first, ninth, and tenth affirmative defenses are STRICKEN. 58 56 Signed by Honorable Jean C. Hamilton on 6/29/11. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LAKESIDE ROOFING COMPANY, et al.,
Plaintiffs,
vs.
JEREMIAH W. NIXON, et al.,
Defendants.

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Case No. 4:10CV01761 JCH

MEMORANDUM AND ORDER
Plaintiffs filed a three-count action alleging Missouri’s Excessive Unemployment Act is
unconstitutional. (Doc. No. 33). Plaintiffs seek declaratory relief and injunctive relief. Defendants
responded with answers on February 10, 2011 and April 27, 2011, including an identical list of
affirmative defenses. (Doc. Nos. 36, 55).1
The matter is before the Court on Plaintiffs’ Motion to Strike Affirmative Defenses (Doc.
Nos. 56, 58).2 The matter is fully briefed and ready for disposition.

1

Because the affirmative defenses are identical, the Court will refer only to the Answer of
Defendants Jeremiah W. Nixon, Chris Koster and Lawrence G. Rebman to the Second Amended
Complaint (Doc. No. 36).
2

In their Memorandum in Support of Plaintiffs’ Motion to Strike the Affirmative Defenses of
Defendants Koster and Redman (Doc. No. 59), Plaintiffs incorporated by reference the discussion
of law and arguments set forth in their Memorandum in Support of Plaintiffs’ Motion to Strike the
Commissioners’ Affirmative Defenses (Doc. No. 57). Accordingly, the Court refers only to Plaintiffs’
Memorandum in Support of Plaintiffs’ Motion to Strike the Commissioners’ Affirmative Defenses
(Doc. No. 57).

DISCUSSION
I.

Standard for a Motion to Strike
Rule 12(f) gives the Court the discretionary power to “strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f); BJC
Health System v. Columbia Casualty Co, 478 F.3d 908, 917 (8th Cir. 2007). Despite the Court’s
broad discretionary power over the resolution of such motions, a motion to strike is considered an
“extreme measure,” viewed with disfavor and infrequently granted. Stanbury Law Firm, P.A. v.
Internal Revenue Service, 221 F.3d 1059, 1063; Lunsford v. United States, 570 F.2d 221, 229 (8th
Cir. 1977). “A motion to strike a defense will be denied if the defense is sufficient as a matter of law
or if it fairly presents a question of law or fact which the court ought to hear.” Lunsford, 570 F.2d
at 229 (citing 2A Moore’s Federal Practice para. 12.21 at 2437 (2d ed. 1975)).
In addition, “a motion to strike should not succeed unless the party shows that it is prejudiced
by the inclusion of a defense or that a defense’s inclusion confuses the issues.” Fluid Control Prods.
v. Aeromotive, No. 4:09-CV-1667, 2010 U.S. Dist. LEXIS 7861, at *4-5 (E.D. Mo. Feb. 1,
2010)(quoting Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc., No. 4:08-CV-243 JCH, 2008
U.S. Dist. LEXIS 70995, 2008 WL 2817106, at *2 (E. D. Mo. July 21, 2008)). “The prejudice
requirement is satisfied if striking the defense would, for example, prevent a party from engaging in
burdensome discovery, or otherwise expending time and resources litigating irrelevant issues that will
not affect the case’s outcome.” Id.3
3

Plaintiffs question whether the pleading requirements from Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), extend to pleadings of affirmative
defenses. (Doc. No. 57, pp. 4-5). This question has not yet been addressed by any court of appeals.
A majority of district courts that have considered the question have extended the Iqbal pleading
standards to affirmative defenses when considering a motion to strike while a minority of district
courts have rejected applying the heightened pleading standards to affirmative defenses. Lane v.
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II.

The Affirmative Defenses

A.

Affirmative Defense 1

Defendants’ first affirmative defense alleges that “[t]he Petition fails to state a claim upon
which relief can be granted.” (Doc. No. 36, p. 11). Failure to state a claim “is not a proper
affirmative defense but, rather, asserts a defect in Plaintiffs’ prima facie case.” Lemery v. Duroso,
No. 4:09CV00167, 2009 U.S. Dist. LEXIS 50771, at *8 (E.D. Mo. June 16, 2009); Boldstar Tech.,
LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1291 (S.D. Fla. 2007)(“Failure to state a claim is
a defect in the plaintiff’s claim; it is not an additional set of facts that bars recovery notwithstanding
the plaintiff’s valid prima facie case. Therefore, it is not properly asserted as an affirmative defense.”).
Defendants must assert this argument, if at all, through a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6). Therefore, it is not properly asserted as an affirmative defense and is stricken as legally
insufficient.
B.

Affirmative Defense 2-8

Plaintiffs tersely assert that paragraphs 2 through 8 of the affirmative defenses assert “nothing
more than bare bones legal conclusions,” provide no factual context, and should be stricken
accordingly. (Doc. No. 57, p. 5). In response, Defendants note that “Plaintiffs provide no detailed
Page, 272 F.R.D. 581, 589-90, n. 5,6 (D. N.M. 2011) (summarizing the decisions on both sides of
the split among district courts); Shaw v. Prudential Ins. Co. of Am., No. 10-03355, 2011 U.S. Dist.
LEXIS 29203, at *7 (W.D. Mo. Mar. 21, 2011). Courts deciding to extend the heightened pleading
standards generally reason that affirmative defenses share the same notice function motivating
heightened pleading standards in Twombly and Iqbal. See, e.g., Hayne v. Green Ford Sales, Inc., 263
F.R.D. 647, 650 (D.Kan. Dec. 22, 2009). On the other hand, courts that have rejected this extension
of the pleading standard to affirmative defenses because affirmative defenses are pled under rule 8(c),
which was not at issue in Iqbal. See, e.g., Lane, 272 F.R.D. at 591-96.
In the instant case, the Court finds that its determinations would not differ depending on the
standard of review employed. Accordingly, the Court declines to decide whether the pleading
requirements of Twombly and Iqbal extend to affirmative defenses.
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analysis for this assertion and do not allege resulting prejudice or confusion.” (Doc. No. 60, p. 3).
Based upon the dearth of any legal analysis of these affirmative defenses and the apparent lack of any
prejudice or effect that allowing these defenses would have on the litigation, the Court denies the
motion to strike these defenses.4
C.

Affirmative Defense 9

In the ninth affirmative defense, Defendants seek to incorporate all future defenses that may
be relevant and seeks to reserve the right to amend the answer to include those affirmative defenses.
(Doc. No. 36, p. 11). Plaintiffs assert that this is not a defense, but rather a “reservation of the right
to raise an affirmative defense” in the future. (Doc. No. 57, p. 5). In their Responses, Defendants
agree that “this is not an ‘affirmative defense.’” (Doc. No. 60, p. 4; Doc. No. 61, p. 4). Accordingly,
the Court strikes this “affirmative defense” as insufficient as a matter of law. If Defendants discover
an additional affirmative defense during the course of discovery, they must petition the Court for
leave to amend the answer pursuant to Fed.R.Civ.P. 15(a)(2). The ninth affirmative defense is
stricken.
D.

Affirmative Defense 10

In the tenth affirmative defense, Defendants seek to incorporate all defenses pled by any other
defendant in this case. (Doc. No. 36, p. 12). This affirmative defense is redundant as each answer
contains identical affirmative defenses. In addition, this defense is insufficient and improper as it does
not provide a specific basis for avoiding Plaintiffs’ claims. As stated previously, if Defendants

4

For example, the second affirmative defense alleges that punitive or exemplary damages are
barred. (Doc. No. 36, p. 11). Plaintiffs do not seek any punitive or exemplary damages in the
Complaint. (Doc. No. 33 ¶¶ 54-71). Thus, as currently pled, this affirmative defense has no bearing
on the outcome of the litigation.
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discover additional defenses, they may petition the Court for relief pursuant to Fed.R.Civ.P. 15(a)(2).
Accordingly, the tenth affirmative defense will be stricken.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Strike Affirmative Defenses (Doc.
Nos. 36 and 38) are GRANTED, in part, and DENIED, in part, in accordance with the foregoing.
IT IS FURTHER ORDERED that Defendants’ first, ninth, and tenth affirmative defenses
are STRICKEN.

Dated this 29th day of June, 2011.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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