Allied World Specialty Insurance Company v. Abat Lerew Construction, LLC et al
ORDER - that Plaintiff's Motion for Leave to File Motion to Strike Affirmative Defenses (Filing No. 35 ) is denied. Ordered by Magistrate Judge Susan M. Bazis. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALLIED WORLD SPECIALTY INSURANCE
ABAT LEREW CONSTRUCTION, LLC,
ABAT LEREW, LLC, MICHAEL R. FORD,
and NOEL A. FORD,
Plaintiff has filed a Motion for Leave to File Motion to Strike Affirmative Defenses. (Filing
No. 35.) Plaintiff attached a Motion to Strike Affirmative Defenses and Brief in Support of Motion
to Strike Affirmative Defenses to its Motion for Leave.
The Court construes the entirety of
Plaintiff’s filing as a request that Defendants’ affirmative defenses be stricken from Defendant’s
Answer. This request will be denied.1
On January 13, 2017, Defendants filed their Answer (Filing No. 23), asserting the affirmative
defenses of equitable estoppel, unclean hands, breach of good faith and fair dealing, unenforceability
of contract, and that Plaintiff caused its own damages. Plaintiff moves to strike these defenses
pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff argues that Defendants have failed to
allege facts supporting the defenses and that the defenses are not cognizable under the law.
Rule 12(f) provides that a court “may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he Eighth
Circuit’s law is clear regarding motions to strike affirmative defenses: while the Court enjoys liberal
discretion to strike pleadings under Fed. R. Civ. P. 12(f), it is an extreme and disfavored measure.”
Defendants filed a brief in opposition to Plaintiff’s request that Defendants’ affirmative
defenses be stricken. (Filing No. 36.) Plaintiff did not submit a reply brief.
Infogroup v. Database LLC, 95 F.Supp.3d 1170, 1193 (D. Neb. 2015) (quotations omitted). “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.” Id.
Federal Rule of Civil Procedure 8(c), which governs affirmative defenses, requires that “[i]n
responding to a pleading, a party must affirmatively state any avoidance or affirmative defense . . .”
Fed. R. Civ. P. 8(c). Although these defenses must be set forth in a responsive pleading, “they need
not be articulated with any rigorous degree of specificity, and may be sufficiently raised for purposes
of Rule 8 by their bare assertion.” Infogroup, Inc., 95 F. Supp.3d at 1193. See Zotos v. Lindbergh
School District, 121 F.3d 356, 361 (8th Cir. 1997).
Applying the standards set forth above, the Court concludes that Plaintiff’s motion should be
denied. As previously mentioned, striking affirmative defenses is a disfavored measure. “Motions to
strike are often considered time wasters, and should be denied unless the challenged allegations have
no possible relation or logical connection to the subject matter of the controversy.” Infogroup, Inc.,
95 F. Supp.3d at 1194. Although the affirmative defenses raised by Defendants in the Answer are
not accompanied by supporting facts, their assertion fulfills Defendants’ duties under Rule 8. It
cannot be said that the alleged defenses have no relation or connection to the subject matter of this
action. Moreover, facts purportedly supporting the affirmative defenses were addressed in briefing
on other matters in this case.
Therefore, Plaintiff has been provided enough information to
commence the discovery process and has been sufficiently notified of the grounds for the defenses.
IT IS ORDERED that Plaintiff’s Motion for Leave to File Motion to Strike Affirmative
Defenses (Filing No. 35) is denied.
Dated this 22nd day of August, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
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