Springfield Engineering Company v. Big-D Construction Midwest LLC et al

Filing 40

ORDER denying 17 and 18 : Plaintiff's Motion to Strike are DENIED. Signed on 8/8/18 by District Judge Beth Phillips. (Cordell, Annette)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
SPRINGFIELD ENGINEERING CO.,

)
)
Plaintiff,
)
)
v.
)
)
BIG-D CONSTRUCTION MIDWEST, LLC, )
and DAIRY FARMERS OF AMERICA, INC., )
)
Defendants.
)

No. 18-3123-CV-W-BP

ORDER AND OPINION DENYING PLAINTIFF’S MOTION TO STRIKE
Pending are Plaintiff’s Motions to Strike, (Docs. 17 and 18), which seek orders striking
Defendants’ affirmative defenses. For the following reasons, the motions are DENIED.
I. BACKGROUND
The Petition Plaintiff filed in state court, (Doc. 1-1, pp. 4-16), alleges that Defendant Dairy
Farmers of America, (“DFA”), retained Defendant Big-D Construction Midwest, (“Big-D”), to
serve as the general contractor on a construction project. In turn, Big-D subcontracted with
Plaintiff to perform work on the project. Plaintiff asserts various claims arising from its allegation
that it was not paid. DFA and Big-D filed separate Answers, both of which include affirmative
defenses. (Doc. 12; Doc. 14.) The affirmative defenses are similar, and in general allege that (1)
Plaintiff has failed to state a claim for which relief can be granted, (2) Plaintiff’s claims are subject
to equitable and legal defenses, including laches, unclean hands, and setoff, (3) Plaintiff has not
complied with various requirements for perfecting a mechanic’s lien, (4) Plaintiff breached first,
and (5) Plaintiff failed to mitigate damages. (Doc. 12, pp. 10-12; Doc. 14, p. 9.)

Plaintiff contends that Defendants’ affirmative defenses have not been pleaded with
sufficient particularity as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). Defendants argue that Twombly and Iqbal do not apply to
affirmative defenses. As discussed below, the Court agrees with Defendants and the Motions to
Strike are DENIED.
II. DISCUSSION
A plaintiff may seek an order striking an insufficient defense. Fed. R. Civ. P. 12(f).
Plaintiff contends that Defendant’s affirmative defenses are insufficient because they do not
contain the specificity required by Iqbal and Twombly. The Eighth Circuit has not addressed
whether Iqbal and Twombly apply to affirmative defenses. The undersigned has previously
considered this issue and concluded that Iqbal and Twombly do not apply to affirmative defenses.
Hiskey v. Musician’s Friend, Inc., No. 16-00279 (W.D. Mo. July 11, 2016) (Doc. 27, pp. 2-4); see
also Capital One, NA v. Henry Wurst, Inc., No. 18-0226 (W.D. Mo. July 17, 2018); Campbell v.
Plaza Services, LLC, No. 18-0154 (W.D. Mo. June 22, 2018) (Doc. 22, pp. 2-3.)
First, before Iqbal and Twombly were decided, the Eighth Circuit determined that an
affirmative defense based on the statute of limitations does not need to be pleaded with any degree
of particularity. Zotos v. Lindbergh School Dist., 121 F.3d 356, 361 (8th Cir. 1997). There is no
reason to think the Eighth Circuit meant to establish one rule for defenses based on the statute of
limitations and a different rule for all other affirmative defenses. The Eighth Circuit has also held
that “[t]he rules . . . only require a defendant to state in short and plain terms its defenses to a
plaintiff’s claim.” Wisland v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir. 1997). This
was the state of the law with respect to affirmative defenses when Iqbal and Twombly were
decided, and those two cases do not compel the conclusion that the Eighth Circuit’s approach was

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wrong. As another district judge in this Circuit has observed, “[t]he Eighth Circuit, if presented
with the question, might well conclude that Zotos has been abrogated by Iqbal and Twombly . . . .
But Zotos is squarely on point, and Iqbal and Twombly are not, which means Zotos remains the
law of this Circuit.” Infogroup, Inc. v. DatabaseLLC, 95 F. Supp. 3d 1170, 1193 (D. Neb. 2015).
This Court is not empowered to decide that Zotos and other, similar cases from the Eighth Circuit
are no longer valid. Furthermore, since the Court issued its Order in Hiskey in 2016, there has
been no binding authority applying Iqbal and Twombly to affirmative defenses.
Second, the textual difference between Rule 8(a)(2) and Rule 8(b)(1)(A) augments the
Court’s conclusion. Rule 8(a)(2) requires a plaintiff to plead “a short and plain statement of the
claim showing that the pleader is entitled to relief.” (emphasis supplied). As Twombly explains,
demonstrating an entitlement to relief under Rule 8(a)(2) “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . Factual
allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555.
In contrast, Rule 8(b)(1)(A) does not require that a defendant plead the basis for an affirmative
defense; it only requires that the defendant “state in short and plain terms it defenses.” This
difference in the Rules’ requirements demonstrates that Iqbal and Twombly do not compel the
conclusion that the Eighth Circuit’s prior decisions are invalid.
Third, application of Iqbal and Twombly to defenses is impractical. Another district judge
in this Circuit has succinctly summarized the matter:
[P]laintiffs and defendants are in much different positions. Typically, a plaintiff
has months—often years—to investigate a claim before pleading that claim in
federal court. By contrast, a defendant typically has 21 days to serve an answer.
Fed.R.Civ.P. 12(a)(1)(A)(i). Whatever one thinks of Iqbal and Twombly, the
“plausibility” requirement that they impose is more fairly imposed on plaintiffs who
have years to investigate than on defendants who have 21 days.

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Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051 (D. Minn. 2010). It is theoretically
possible (as some district judges have held) to require a defendant to “wait” and then seek leave to
amend the Answer to assert affirmative defenses as they are gleaned during discovery, but this
would unnecessarily complicate and prolong the litigation. “Plaintiffs would often resist those
motions on the grounds that the proposed affirmative defenses would be futile. Thus, another
round of motion practice would be added to many cases, increasing the burdens on the federal
courts, and adding expense and delay for the parties.” Id. at 1052. In contrast, there is little harm
to leaving affirmative defenses in place because “[i]n a typical case, it quickly becomes apparent
that most of the affirmative defenses are not viable, and the parties simply ignore them. No judicial
intervention is necessary.” Id. Similarly, some of the defenses (such as the “defense” denying
Plaintiff’s allegations) are not really defenses at all; their presence does not aid Defendants and
their absence does not aid Plaintiff. Finally, some defenses are not “self-executing;” in other
words, they require an additional motion in order for Defendant to present the issue. For instance,
the various defenses contending that Plaintiff has failed to state a claim or properly alleged its
entitlement to a mechanic’s lien will not help Defendants absent a motion to dismiss or a motion
for judgment on the pleadings. Therefore, the presence of these defenses does not cause any
hardship to Plaintiff.
For the reasons stated above, Plaintiff’s Motions to Strike Defendants’ affirmative defenses
based on Iqbal and Twombly is denied.

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III. CONCLUSION
For the reasons stated above, Plaintiff’s Motions to Strike Defendants’ affirmative defenses
are DENIED.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT

DATE: August 8, 2018

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