Johnson v. Clark et al

Filing 41

ORDER granting 29 Motion to Strike Defendants' Fourth and Fifth AffirmativeDefenses. Defendants, however, are permitted to file an amended answer within fourteen days of the filing date of this order. Signed by Senior Judge James C. Fox on 7/8/2013. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-743-F
W. GLENN JOHNSON, Administrator
ofthe Estate ofBRANDON JOLVON
BETHEA, deceased,
Plaintiff,
v.

JOHN VINCENT CLARK, et al.,
Defendants.

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ORDER

This matter is before the court on the Motion to Strike Defendants' Fourth and Fifth
Affirmative Defenses [DE-29] filed by PlaintiffW. Glenn Johnson, Administrator ofthe Estate
of Brandon Jolvon Bethea, deceased. Defendants have responded, and the time for filing a reply
has since passed. This motion is therefore ripe for ruling.

I. FACTUAL AND PROCEDURAL HISTORY
Johnson initiated this action on November 15, 2012, by filing a complaint in this court.
Thereafter, Johnson filed the First Amended Complaint on December 11, 2012, alleging claims
under 42 U.S.C. § 1983 and North Carolina common law arising out ofthe March 15,2011,
death of Brandon Jolvon Bethea ("decedent" or "Bethea"). Specifically, Johnson alleges that a
detention officer for the Sheriff of Harnett County deployed a taser and shocked Bethea three
times on March 15, 2011, while Bethea was being held as a pre-trial detainee at the Harnett
County Detention Center. Johnson also alleges that other detention officers failed to come to
Bethea's aid, resulting in Bethea's death 25 minutes after the first taser discharge.

In their Answer to Johnson's First Amended Complaint, Defendants asserted five
affirmative defenses. The Fourth and Fifth Affirmative Defenses state:
FOURTH AFFIRMATIVE DEFENSE
38. Plaintiffs action is barred due to Bethea's negligence and gross negligence at
the time of the incident which constituted a proximate cause of his injuries and
death.
FIFTH AFFIRMATIVE DEFENSE
39. The First Amended Complaint fails to state a claim upon which relief can be
granted.
Answer [DE-25] p. 6.
Johnson now moves pursuant to Rule 12(f) of the Federal Rules of Civil Procedure to
strike the Fourth and Fifth Affirmative Defenses, arguing the defenses fail to comply with Rule 8
of the Federal Rules of Civil Procedure. 1
II. ANALYSIS

Rule 12(f) ofthe Federal Rules of Civil Procedure provides, in pertinent part, that a
"court may strike from a pleading an insufficient defense .... " FED. R. CIV. P. 12(f). "A
defense is insufficient 'if it is clearly invalid as a matter oflaw.' "Spell v. McDaniel, 591 F.
Supp. 1090, 1112 (E.D.N.C. 1984)(quoting Anchor Hocking Corp. v. Jacksonville Elec.

Authority, 419 F.Supp. 992, 1000 (M.D.Fla. 1976)). When reviewing a motion to strike, "the
court must view the pleading under attack in a light most favorable to the pleader." Clark v.

Milam, 152 F.R.D. 66,71 (S.D.W.Va. 1993).

1

In support of his motion, Johnson submitted two video recordings on DVD showing
the exterior and interior ofthe cell housing Bethea. See Notice ofFiling ofDVDs [DE-31]. It
is unclear to the court how a video recording would aid the court in ruling on the motion to
strike, and the court has not considered it.

2

The Fourth Circuit has cautioned that "Rule 12(f) motions are generally viewed with
disfavor 'because striking a portion of a pleading is a drastic remedy and because it is often
sought by the movant simply as a dilatory tactic.' " Waste Mgmt. Holdings Inc. v. Gilmore, 252
F .3d 316, 347 (4th Cir. 2001 )(quoting 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE§ 1380 (2d ed. 1990)). Regardless, if a movant can show that
a defense clearly is insufficient, the court should grant the motion to strike. See Spell, 591
F.Supp. at 1112. Given the disfavored status of Rule 12 (f) motions to strike defenses, however,
a defendant normally is allowed leave to amend the answer. Banks v. Realty Mgmt. Serv. Inc.,
No. 1:10-CV-14, 2010 WL 420037, at *1 (E.D.Va. Jan. 29, 2010)(citing 5C WRIGHT & MILLER§
1381).
In this case, Johnson argues that Defendants' Fourth and Firth Affirmative Defenses must
be stricken because Defendants have failed to allege sufficient facts to provide Johnson with
sufficient notice of the affirmative defenses in question. In so doing, Johnson relies on this
court's decision in Racick v. Dominion Law Associates, 270 F.R.D. 228 (E.D.N.C. 2010), where
the undersigned concluded that the plausibility standard set forth in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies equally to
complaints and affirmative defenses. Johnson contends that Defendants failed to include any
factual allegations which support their invocation of contributory negligence, gross negligence,
and failure to state a claim.
Defendants do not argue that the challenged affirmative defenses satisfy the Twombly-

Iqbal pleading requirements. Rather, Defendants suggest that this court should reverse course
from its decision in Racick and instead allow conclusory defenses to stand.

3

This the court declines to do. For the reasons stated on pages five through nine of
Johnson's Memorandum of Law in Support of Plaintiffs Motion to Strike [DE-30], Johnson's
Motion [DE-29] is ALLOWED, and the Fourth and Fifth Affirmative Defenses are stricken.
Defendants, however, are permitted to file an amended answer within fourteen days of the filing
date ofthis order.

III. CONCLUSION
For the foregoing reasons, the Motion to Strike Defendants' Fourth and Fifth Affirmative
Defenses [DE-29] is ALLOWED, and the Fourth and Fifth Affirmative Defenses are stricken.
Defendants, however, are permitted to file an amended answer within fourteen days of the filing
date of this order.

SO ORDERED.

ve:A

This the _o_ day of July, 2013.

JJ&.lEs C. FOX
Senior United States District Judge

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