Baustian et al v. Fifth Third Bank
MEMORANDUM AND ORDER re: 8 MOTION to Strike Plaintiffs' Motion to Strike Defendant's Affirmative Defenses And/Or in the alternative Motion for More Definite Statement filed by Plaintiff Kevin Baustian. IT IS HEREBY ORDERED th at plaintiff's Motion to strike defendant's affirmative defenses (#8) is DENIED. IT IS FURTHER ORDERED that plaintiff's Motion to require a more definite statement (#8) is DENIED without prejudice. Signed by District Judge Stephen N. Limbaugh, Jr on 12/3/13. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KEVIN BAUSTIAN and DANIEL NOLAN, )
FIFTH THIRD BANK,
Case No. 4:13-cv-1423 SNLJ
MEMORANDUM AND ORDER
Plaintiffs Kevin Baustian and Daniel Nolan were previously employed as mortgage loan
officers by defendant Fifth Third Bank. Plaintiff brought this action against defendant to recover
unpaid wages and other damages under the Fair Labor Standards Act (“FLSA”), Missouri
Minimum Wage Law (“MMWL”), and Missouri common law. Defendant answered the
complaint, and plaintiffs have moved to strike defendant’s affirmative defenses and/or to require
a more definite statement (#8). The motion has been fully briefed and is now ripe for disposition.
Federal Rule of Civil Procedure 12(f) states that the Court “may strike from a
pleading...any...immaterial...matter...on motion made by a party.” Because they propose a
drastic remedy, motions to strike are not favored and are infrequently granted. Stanbury Law
Firm, P.A. v. Internal Revenue Service, 221 F.3d 1059, 1063 (8th Cir. 2000). Nonetheless,
resolution of such a motion lies within the broad discretion of the Court. Id.
In the matter at hand, the parties disagree regarding whether the relatively new pleading
standards for complaints set forth by the United States Supreme Court in Twombly and Iqbal
apply equally to affirmative defenses. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Those two cases underscore the Federal Rules’
basic pleading tenets: (1) that “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice,” and (2) “only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly,
550 U.S. at 555-56). Commonly invoked in the context of motions to dismiss, these pleading
standards require that a plaintiff plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.at
Plaintiff contends that those pleading standards are applicable to affirmative defenses, as
well. The Court of Appeals for the Eighth Circuit has not opined on that matter since Twombly
and Iqbal were decided. Generally, and “[a]s numerous federal courts have held, an affirmative
defense may be pleaded in general terms and will be held to be sufficient, and therefore
invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the nature of the
defense.” 5 Charles Alan Wright et al., Federal Practice & Procedure § 1274 (3d ed. Westlaw
2013) (footnotes omitted).1 The Eighth Circuit has observed, for example, that “while a
limitations defense must be asserted in a responsive pleading, it need not be articulated with any
rigorous degree of specificity, and is sufficiently raised for purposes of Rule 8 by its bare
assertion.” Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir. 1997) (quoting
Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994)) (internal
quotation omitted). The District Courts in this Circuit (and courts within this District) appear to
disagree as to whether heightened pleading of affirmative defenses is required post-Iqbal. See
Strauss v. Centennial Precious Metals, Inc., 291 F.R.D. 338, 342 (D. Neb. 2013) (collecting
Excepted from that rule are “defenses that fall within the special pleading provisions in
Rule 9, especially Rule 9(b), which deals with fraud, mistake, and condition of the mind, or the
terms of a federal statute.” Id.
cases and noting that Twombly and Iqbal do not appear to have affected the Eighth Circuit’s
“holdings that a minimal pleading standard applies to affirmative defenses”); but see Lemery v.
Duroso, 4:09CV00167 JCH, 2009 WL 1684692 (E.D. Mo. June 16, 2009) (requiring that the
defendant plead facts to support legal conclusions stated as affirmative defenses); cf.
CitiMortgage, Inc. v. Draper & Kramer Mortgage Corp., 4:10cv1784 FRB, 2012 WL 3984497,
*3 (E.D. Mo. Sept. 11, 2012) (plausibility standard does not apply to affirmative defenses) with
Amerisure Ins. Co. v. Thomas, 4:11cv642 JCH, 2011 WL 3021205, *2-3 (E.D. Mo. July 21,
2011) (plausibility standard does apply to affirmative defenses); Hayden v. United States, 4:12
CV 2030 DDN, 2013 WL 5291755 (E.D. Mo. Sept. 19, 2013) (collecting cases).
As a court in this District recently observed,
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”...[but] have required that affirmative defenses be
more than “bare bones conclusory allegations.” Further, consideration is given to
the requirement of Rule 12(b) that every defense to a claim must be asserted in the
required responsive. “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.”
Hayden, 2013 WL 5291755, at *3 (quoting and citing Fed. R. Civ. P. 8(b) and U.S. ex rel.
Monahan v. Robert Wood Johnson University Hosp. at Hamilton, 02-5702 JAG, 2009 WL
4576097, *5 (D.N.J. Dec. 1, 2009)) (internal citations omitted). This Court is in agreement with
those courts that hold that the plausibility standard does not apply to affirmative defenses.
Ultimately, “a defense should not be struck if it is ‘sufficient as a matter of law’ or ‘presents a
question of law or fact which the court ought to hear.’” Fleishour v. Stewart Title Guar. Co., 640
F. Supp. 2d 1088, 1090 (E.D. Mo. 2009) (quoting Lunsford v. United States, 570 F.2d 221, 229
(8th Cir. 1977)).
Defendant’s answer denies that it violated state or federal law and sets forth 14
affirmative defenses. The Court has reviewed and considered each of those 14 affirmative
defenses and holds that the defendant has adequately pleaded those affirmative defenses by
stating them in short and plain terms as required by the Federal Rules of Civil Procedure.
Plaintiffs alternatively seek a more definite statement from defendant with respect to
defendant’s affirmative defenses. That request should be denied for the same reason plaintiffs’
motion to strike is denied. However, after some initial discovery has taken place, it may be
appropriate for plaintiffs to raise their motion for a more definite statement again. For that
reason, that aspect of plaintiffs’ motion is denied without prejudice.
IT IS HEREBY ORDERED that plaintiff’s Motion to strike defendant’s affirmative
defenses (#8) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s Motion to require a more definite
statement (#8) is DENIED without prejudice.
day of December, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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