VanDevender et al v. Blue Ridge of Raleigh, LLC et al

Filing 61

ORDER GRANTING 46 Plaintiffs' Motion to Dismiss Defendants' Affirmative Defenses, and GRANTING 51 Defendants' Motion for Leave to File Answers Out of Time. Defendants' third, fourth, fifth, and sixth affirmative defenses are stricken. Defendants are permitted to amend their answers within fourteen days of the date of entry of this order to include properly pled affirmative defenses. Moreoever, leave shall be freely given if justice so requires should defendants seek to amend their answers to include an affirmative defense, the existence of which is uncovered during discovery. Signed by US District Judge Terrence W. Boyle on 1/23/2015. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:14-CV-150-BO
GERALDINE L. VANDEVENDER, Administrator)
of the Estate of DELRAY BAIRD, deceased, and )
JACQUELINE ANN BAIRD, deceased, et al.,
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Plaintiffs,

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)

V.

ORDER

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)

BLUE RIDGE OF RALEIGH, LLC d/b/a
BLUE RIDGE HEALTH CARE CENTER, et al.,

)
)
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Defendants.

)

This matter is before the Court on plaintiffs' motion to dismiss defendants' affirmative
defenses and defendants' motion for leave to file their answer out of time. For the reasons
discussed below, defendants' motion for leave to file out of time is granted and plaintiffs' motion
to dismiss defendants' affirmative defenses is granted.

BACKGROUND
Plaintiffs filed this action on December 23, 2013, in Wake County Superior Court. By
order entered August 4, 2014, this Court denied defendants' motion to dismiss plaintiffs'
complaint. Plaintiffs now seek to dismiss defendants' affirmative defenses included in their
answer filed on August 20, 2014. Plaintiffs argue that the answers were not timely filed and that
the affirmative defenses have been improperly pleaded. Defendants Blue Ridge of Raleigh, Care
Virginia Management, and Care One have moved for leave to file their answers out of time.

DISCUSSION
I. MOTION FOR LEAVE TO FILE

The Court first considers defendants' motion for leave to file answers out oftime.
Counsel's neglect in miscalculating the deadline by which to file an answer is excusable, and
therefore, for good cause shown, the Court deems as timely filed defendants' answers filed on
August 20, 2014.
II. MOTION TO DISMISS DEFENDANTS' AFFIRMATIVE DEFENSES

In light of the foregoing, the Court denies plaintiffs' request to dismiss defendants'
affirmative defenses for being untimely filed.
affirmative defenses as improperly pleaded.

Plaintiffs also move to dismiss defendants'
The Court will construe plaintiffs' motion to

dismiss as a motion to strike.
Rule 12(t) of the Federal Rules of Civil Procedure allows the Court to strike from a
pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter." Motions to strike are generally disfavored in this circuit, however, "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). In
considering whether to allow a motion to strike an affirmative defense, the Court applies the
same pleading requirements as those applied to a complaint; in other words, the Court considers
whether the defenses pleaded contain "more than labels and conclusions" or "a formulaic
recitation of the cause of action." See Racick v. Dominion Law Assoc., 270 F .R.D. 228, 233-34
(E.D.N.C. 2010) (following the majority of courts in this circuit that mandate the same pleading
requirements for affirmative defenses as for complaints) (citing Bell Atlantic Corp. v. Twombly,
550 u.s. 544, 555 (2007)).

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Defendants have pleaded nme affirmative defenses; plaintiffs' challenge the third
(doctrine of assumption of risk), fourth (failure to mitigate damages and the doctrine of
avoidable consequences), fifth (all equitable defenses, including laches, waiver, estoppel, set off,
and unclean hands), and sixth (all applicable statutes of limitations and repose) affirmative
defenses as insufficient. "At a minimum, the facts asserted in an affirmative defense, and the
reasonable inferences that may be drawn from those facts, must plausibly suggest a cognizable
defense." Topline Solutions, Inc. v. Sandler Sys., Inc., No. L-09-3102, 2010 WL 2998836, at *1
(D. Md. July 27, 2010).
In support of each of the challenged defenses, defendants assert no facts at all, much less
any facts that would permit the Court to draw a reasonable inference that would suggest a
cognizable defense.
STRICKEN.

Each challenged defense is a formulaic recitation and is therefore

Indeed, given the nature of plaintiffs' claims, some of the raised affirmative

defenses, such as failure to mitigate damages and unclean hands, appear to be the result of
defendants "tossing [affirmative defenses] into the case like a fish hook without bait." Palmer v.
Oakland Farms, Inc., No. 5:10CV00029, 2010 WL 2605179, at *6 (W.D. Va. June 24, 2010).
CONCLUSION

For the foregoing reasons, defendants' motion for leave to file answers out of time [DE
51] is GRANTED. Plaintiffs' motion to dismiss, construed as a motion to strike, defendants'
affirmative defenses [DE 46] is GRANTED. Defendants' third, fourth, fifth, and sixth
affirmative defenses are STRICKEN.
Defendants are permitted, however, to amend their answers within fourteen days of the
date of entry of this order to include properly pleaded affirmative defenses. Moreover, pursuant
to Rule 15(a) of the Federal Rules of Civil Procedure, leave shall be freely given if justice so

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requires should defendants seek to amend their answers to include an affirmative defense, the
existence of which is uncovered during discovery.

SO ORDERED.

This

the~ day of January, 2015.

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