Hayden v. United States of America
MEMORANDUM AND ORDER re: IT IS HEREBY ORDERED that the motion of plaintiff Mary Hayden for a more definite statement (Doc. 48 ) is denied.. Signed by Magistrate Judge David D. Noce on 9/19/13. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:12 CV 2030 DDN
MEMORANDUM AND ORDER
This action is before the court on the motion of plaintiff Mary Hayden for a more definite
statement. (Doc. 48.) The court heard oral argument on September 3, 2013.
On November 1, 2012, plaintiff Mary Hayden commenced this action against defendant
United States of America. (Doc. 1.) On February 11, 2013, defendant moved for dismissal of
Count II for failure to exhaust administrative remedies, which the court granted on March 19,
2013. (Docs. 6, 26.) On April 18, 2013, plaintiff amended her complaint. (Doc. 31.) On May
1, 2013, defendant moved for dismissal of Count II for failure to state a claim, which the court
granted on June 19, 2013. (Docs. 34, 42.) On July 12, 2013, plaintiff filed a second amended
complaint. (Doc. 45.)
According to the amended complaint, the following occurred. Plaintiff Mary Hayden
survives her decedent spouse, Ronald Hayden. (Id. at ¶ 1.) The United States Department of
Veterans Affairs employs the staff of John Cochran Veterans Administration Medical Center
(VA Medical Center) in St. Louis, Missouri. (Id. at ¶ 5.) On April 15, 2011, Ronald Hayden
received treatment at the VA Medical Center including a blood glucose test, which revealed that
he suffered from severe hypoglycemia. (Id. at ¶¶ 13-14.) However, he left the hospital without
treatment or advice regarding this condition. (Id. at ¶¶ 14-15.) Later that day, Ronald Hayden
collapsed and died. (Id. at ¶ 16.)
Plaintiff alleged two counts under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671 et seq. (Id. at ¶ 4.) In Count I, plaintiff alleges a wrongful death claim that defendant’s
negligent medical treatment caused Ronald Hayden’s death. (Id. at ¶¶ 19-21.) In Count II,
plaintiff alleges a lost chance of survival claim that the negligent medical treatment of defendant
caused Ronald Hayden to lose a significant chance of survival. (Id. at ¶¶ 22-27.)
On July 26, 2013, defendant filed an answer to plaintiff’s second amended complaint,
including the following affirmative defenses:
The alleged injuries were caused solely by the acts or omissions of other
parties, persons, or entities, their servants, agents, representatives, or employees,
none of whom are agencies or employees of Defendant for whom Defendant has
any liability pursuant to the Federal Tort Claims Act.
Plaintiffs’ damages and losses, if any, were solely and proximately caused
by Decedent or Plaintiffs’ own negligence, carelessness, or reckless conduct.
Plaintiffs’ damages and losses, if any, were solely and proximately caused
by Decedent or Plaintiffs’ own negligence, carelessness, or recklessness such that
the doctrine of comparative fault should be applied to diminish their recovery, if
any, by their percentage of fault.
Plaintiffs’ damages and losses, if any, were caused or contributed to be
caused by Decedent or Plaintiff’s own negligence, therefore, their recovery
against Defendant, if any, must be diminished by their percentage of fault in this
(Doc. 47 at ¶¶ 38-41.)
Plaintiff moves for a more definite statement of defendant’s affirmative defenses.
Specifically, plaintiff requests that the aforementioned affirmative defenses comply with the
standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) – that a pleading must
set forth sufficient facts to demonstrate plausibility.
“A party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare
a response.” Fed. R. Civ. P. 12(e). “Rule 12(e) is not designed to remedy an alleged lack of
detail, rather, the Rule is intended to serve as a means to remedy unintelligible pleadings.”
Resolution Trust Corp. v. Fiala, 870 F. Supp. 962, 977 (E.D. Mo. 1994). Rule 12(e) motions are
generally disfavored, particularly when discovery will clarify the issues. Thrasher v. Missouri
State Highway Comm'n, 534 F. Supp. 103, 106 (E.D. Mo. 1981), aff'd, 691 F.2d 504 (8th Cir.
1982); Zamora v. Massey-Ferguson, Inc., 336 F. Supp. 588, 592 (S.D. Iowa 1972).
Plaintiff argues that the affirmative defense pleadings preclude the ability to respond at
trial. However, Fed. R. Civ. P. 12(e) by its own terms refers to the ability to respond to the
pleadings. Further, defendant’s pleadings are not unintelligible nor does plaintiff argue that they
are. Rather, plaintiff argues that these allegations do not include sufficient factual detail to
indicate that they are plausible, the standard adopted by the Supreme Court for claims under Fed.
R. Civ. P. 12(b)(6).
The Supreme Court established the plausibility standard based on the language of Fed. R.
Civ. P. 8(a)(2), which requires that, for claims, pleadings must include a statement “showing that
the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“The
need at the pleading stage for allegations plausibly suggesting (not merely consistent with)
agreement reflects the threshold requirement of Rule 8(a)(2) that the “plain statement” possess
enough heft to ‘sho[w] that the pleader is entitled to relief.’”).
The Supreme Court and the Eighth Circuit Court of Appeals have not yet decided
whether the plausibility standard for claims also applies to affirmative defenses. CitiMortgage,
Inc. v. Draper & Kramer Mortgage Corp., 2012 WL 3984497, *3 (E.D. Mo. 2012). Federal
district courts are split on the issue. E.g., cf. Citimortgage, 2012 WL 3984497 (plausibility
standard does not apply to affirmative defenses) with Amerisure Ins. Co. v. Thomas, 2011 WL
3021205, *2-3 (E.D. Mo. 2011) (plausibility standard does apply to affirmative defenses).
Courts that conclude that the plausibility standard should apply to affirmative defenses
primarily rely on the principle of evenhandedness in the application of the due process notice
requirement. Stated another way, the purpose of judicial pleadings is to provide the opposing
parties sufficient information to indicate that "there is some plausible, factual basis for the
[alleged affirmative defense] and not simply a suggestion of possibility that it may apply to the
case." Citimortgage, 2012 WL 3984497, at *2 (quoting Lucas v. Jerusalem Café, LLC, 2011
WL 1364075, at *2 (W.D. Mo. 2011)); Francisco v. Verizon South, Inc., 2010 WL 2990159, at
*7-8 (E.D. Va. 2010) ("'the considerations of fairness, common sense and litigation efficiency'
dictate that litigants articulate complaints and affirmative defenses according to the same
pleading standards,") (quoting Palmer v. Oakland Farms, Inc., 2010 WL 2605179, at *5
(W.D.Va. 2010))). Another reason for applying the plausibility standard to affirmative defenses
was expressed by the district court in Palmer thus:
Moreover, by applying the Twombly-Iqbol heightened pleading standard
to affirmative defenses, a plaintiff will not be left to the formal discovery process
to find out whether the defense exists and may, instead, use the discovery process
for its intended purpose of ascertaining the additional facts which support a wellpleaded claim or defense.
Palmer v. Oakland Farms, Inc., 2010 WL 2605179, at *5.
Courts that decided that the plausibility standard should not be applied to affirmative
defenses have adverted to Rule 8(b)'s requirement that a defense be stated "in short and plain
terms." F.R.Civ. P. 8(b); U.S. ex rel. Monahan v. Robert Wood Johnson University Hosp. at
Hamilton, 2009 WL 4576097, at *5 (D.N.J. 2009), and have required that affirmative defenses
be more than "bare bones conclusory allegations." Id. (internal citation omitted).
consideration is given to the requirement of Rule 12(b) that every defense to a claim must be
asserted in the required responsive pleading. "Given this dictate and the early procedural posture
at which defendants commonly must plead affirmative defenses, it is unreasonable to expect
Defendant to plead affirmative defenses with the particularity that the [plaintiff's] motion implies
is necessary." Id.
This court is persuaded that (a) the language of the rules that apply to the pleading of
affirmative defenses,1 (b) the limitation of discovery relevancy to defendant's alleged defense(s)
found in Rule 26(b)(1), (c) the good faith basis for the factual support for the alleged defenses
certified to by defendant's counsel pursuant to Rule 11(b), (d) the practicality of the temporal
constraint on the defendant to allege in the responsive pleading such defenses, and (e) the ability
of the plaintiff to learn through discovery the specific facts supporting the affirmative defenses
dictate the conclusion that affirmative defenses ought not be required to be initially pled
according to the plausibility standard required of claims. See Bank of Beaver City v. Sw.
Feeders, L.L.C., 2011 WL 4632887, *7 (D. Neb. 2011) (“Rule 8(b) lacks the ‘entitlement
requirement’ that is central to the Supreme Court's reasoning in Twombly and Iqbal.”); Wells
Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051-52 (D. Minn. 2010) (“[N]either Rule
Fed. R. Civ. P. 8(b)(1)(A) (“short and plain terms its defense to each claim asserted against it”)
and 8(c)(1) (“affirmatively state”).
8(a)(2) nor any other rule requires a defendant to plead facts “showing” that the plaintiff is not
entitled to relief”).
Defendant has adequately initially pled its affirmative defenses by affirmatively stating
them in short and plain terms as required by the Federal Rules of Civil Procedure.
For the reasons stated above,
IT IS HEREBY ORDERED that the motion of plaintiff Mary Hayden for a more
definite statement (Doc. 48) is denied.
/S/ David D. Noce______________
UNITED STATES MAGISTRATE JUDGE
Signed on September 19, 2013.
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?