Board of Education of the Highland Local School District v. U.S. Department of Education et al
ORDER granting in part and denying in part 119 Motion to Strike. The Court STRIKES with prejudice affirmative defenses 10, 36-38, and 40 and STRIKES without prejudice affirmative defenses 2-5, 7-9, 26-29, 30, 32, 35, and 39. Signed by Judge Algenon L. Marbley on 8/21/2017. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
JANE DOE, a minor, by and through her
legal guardians JOYCE and JOHN DOE
Intervenor Third-Party Plaintiff,
BOARD OF EDUCATION OF THE
HIGHLAND LOCAL SCHOOL
DISTRICT, et al.,
Case No. 2:16-CV-524
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson
OPINION & ORDER
This matter is before the Court on Intervenor Jane Doe’s Motion to Strike Certain
Defenses from the Answer of Third-Party Defendants Board of Education of the Highland Local
School District, Shawn Winkelfoos, and William Dodds (collectively, “Highland”) (Doc. 119.)
For the reasons that follow, the Court GRANTS in part and DENIES in part Doe’s Motion to
Strike Highland’s Affirmative Defenses. (Doc. 119.) In particular, the Court STRIKES with
prejudice affirmative defenses 10, 36-38, and 40 and STRIKES without prejudice affirmative
defenses 2-5, 7-9, 26-29, 30, 32, 35, and 39.
This case centers on the efforts of an eleven-year-old transgender girl to use the girls’
restroom at Highland Elementary School. The case began with Highland asking this Court to
enjoin the Department of Education (“DOE”) and the Department of Justice (“DOJ”) from
enforcing Title IX’s antidiscrimination provisions based on the school district’s policy of
segregating student bathrooms by biological sex. (Doc. 10 at 1-3.) The Court granted Jane
Doe’s motion to intervene (Docs. 15, 29), and Jane Doe filed her intervenor third party
complaint, in which she alleges violations of the United States Constitution (Fourteenth
Amendment and Right to Privacy), and Title IX of the Education Amendments of 1972. (Doc.
32.) Doe subsequently filed her own motion for a preliminary injunction, seeking to require
Highland to “treat her as a girl and treat her the same as other girls, including using her female
name and female pronouns and permitting Jane to use the same restroom as other girls at
Highland Elementary School during the coming school year.” (Doc. 36 at 2.)
Following extensive briefing and oral argument, on September 26, 2016, the Court
denied Highland’s motion for preliminary injunction against the DOE and DOJ and granted Jane
Doe’s motion for preliminary injunction against Highland. (Doc. 95.) Highland appealed, and
dozens of states and the District of Columbia weighed in via amicus briefs. (Docs. 99, 100.)
Highland answered Doe’s complaint on October 31, 2016, (Doc. 115), and Doe moved to
strike certain of Highland’s affirmative defenses on November 21, 2016. (Doc. 116.) Highland
replied to Doe’s motion to strike on December 27, 2016, (Doc. 127), and this motion is now ripe
Meanwhile, in late December 2016, the parties stipulated, (Doc. 126), and the Court
adopted the parties’ stipulation, (Doc. 129), to stay this case until the conclusion of the Sixth
Circuit appeal of the Court’s preliminary injunction order. Following a change in political
administration and the new administration’s revocation of DOE/DOJ guidance documents
relating to transgender students, the parties agreed to dismiss the appeal. (Doc. 130.) Highland
then dismissed the DOE and DOJ from the case before this Court. (Doc. 131.) Doe’s case
against Highland remains, however, and the Court now addresses Doe’s motion to strike certain
of Highland’s affirmative defenses. (Doc. 119.)
STANDARD OF REVIEW
The Court, upon motion or on its own, “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Motions to strike are entrusted to the “sound discretion of the trial court, but are generally
disfavored.” Yates-Mattingly v. University of Cincinnati, No. 1:11–cv–753, 2013 WL 526427, at
*1 (S.D. Ohio Feb. 11, 2013). Indeed, “[s]triking pleadings is considered a drastic remedy to be
used sparingly and only when the purposes of justice so require.”
Id. (citing Brown &
Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.1953)). The Court
should grant a motion to strike “only when the pleading stricken has no possible relation to the
controversy.” Id. Indeed, the Court should not grant a motion to strike if “the insufficiency of
the defense is not clearly apparent, or if it raises factual issues that should be determined on a
hearing on the merits.”
Joe Hand Promotions, Inc. v. Havens, 2:13–cv–0093, 2013 WL
3876176, at *1 (S.D. Ohio July 26, 2013) (internal quotation omitted).
On the other hand, “motions to strike ‘serve a useful purpose by eliminating insufficient
defenses and saving the time and expense which would otherwise be spent in litigating issues
which would not affect the outcome of the case.’” Id. (internal quotations omitted). If an
affirmative defense is “insufficient; that is, if as a matter of law, the defense cannot succeed
under any circumstances,” then a motion to strike is proper. Sec. & Exch. Comm’n v. Thorn, No.
2:01-CV-290, 2002 WL 31412440, at *2 (S.D. Ohio Sept. 30, 2002). An affirmative defense
that is insufficient as a matter of law may be stricken with prejudice. See id. at *3; Stein v.
Chubb Custom Ins. Co., No. 15-cv-23690, 2016 WL 8716500, at *2 (S.D. Fla. Mar. 29, 2016)
(“an affirmative defense should only be stricken with prejudice when it is insufficient as a matter
of law. Otherwise, district courts may strike the technically deficient affirmative defense without
prejudice and grant the defendant leave to amend the defense.”)
In addition, district courts are split as to whether the pleading standard articulated in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)
apply to affirmative defenses, and the Sixth Circuit has not weighed in. Herrera v. Churchill
McGee, LLC, 680 F.3d 539, 547 n.6 (6th Cir. 2012) (We therefore have no occasion to address,
and express no view regarding, the impact of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), on affirmative defenses.”); Peters v. Credit Protection Ass’n LP, No. 2:13–
CV–0767, 2015 WL 1022031, at *2 (S.D. Ohio Feb. 19, 2015) (acknowledging split among
district courts and applying Twombly/Iqbal standards to affirmative defenses); Chiancone v. City
of Akron, No. 5:11-CV-337, 2011 U.S. Dist. LEXIS 108444, at *10 (N.D. Ohio Sep. 23, 2011)
(acknowledging split among district courts and declining to apply Twombly/Iqbal standards to
affirmative defenses). Under the Twombly/Iqbal standard, a complaint’s factual allegations
“must be enough to raise a right to relief above the speculative level,” and must contain “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555. A claim is
plausible when it contains “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 678. The Court is not
required to accept as true mere legal conclusions unsupported by factual allegations. Id. (citing
Twombly, 550 U.S. at 555).
In Peters v. Credit Protection Association LP, and Edizer v. Muskingum University, this
Court has made clear that it agrees with the reasoning of the district courts applying
Twombly/Iqbal to affirmative defenses. Peters, No. 2:13–CV–0767, 2015 WL 1022031, at *4
(S.D. Ohio Feb. 19, 2015); Edizer, No. 2:11–CV–799, 2012 WL 4499030, at *11–12 (S.D. Ohio
Sept. 28, 2012). Therefore, because the Sixth Circuit has not weighed in with a contrary opinion,
the Court holds that Highland’s affirmative defenses must meet the “plausibility” pleading
standards contained in Twombly and Iqbal.
Jane Doe seeks to strike Highland’s affirmative defenses 2–5, 7–8, 10, 26, 30, 32, and
36–40 on the grounds that they are immaterial or insufficient on their faces. She seeks to strike
affirmative defenses 9, 27–29, and 35 on the grounds that they fail to meet the plausibility
standards laid out in Twombly and Iqbal.1 The Court will address the latter first.
Affirmative Defenses 9, 27–29, and 35
Doe contends that Affirmative Defenses 9, 27-29, and 35 fail to set forth the factual
allegations necessary to meet the plausibility requirements of Twombly/Iqbal. (Doc. 119-1 at 2,
Because these affirmative defenses are “‘bare-bones conclusion[s]’ or “boilerplate
defenses that do ‘not fit the admitted facts in the pleadings,’” Doe argues that they should be
dismissed without prejudice so that Highland can attempt to meet the pleading requirements.
Highland argues that Twombly and Iqbal do not apply to affirmative defenses, and seeks
support in the Sixth Circuit’s opinion in Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir.
This argument is ill-conceived, however, because this Court has already rejected
Montgomery’s applicability to affirmative defenses, Peters, 2015 WL 1022031, at *4, and the
Sixth Circuit itself has acknowledged that it has not reached the question of whether affirmative
defenses are subject to the standards in Twombly and Iqbal. Herrera, 680 F.3d at 547 n.6 (We
therefore have no occasion to address, and express no view regarding, the impact of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), on affirmative defenses.”).
Doe does not attack affirmative defenses 1, 6, 11-25, 31, or 33-34.
Highland’s Affirmative Defenses 9, 27-29, and 35 read as follows:
122. Plaintiff’s claims are barred in whole, or in part, under the statute of limitations.
140. Highland Local School District is not a legal entity capable of being sued.
141. Plaintiff’s claims are barred in whole, or in part, by the doctrine of unclean
142. Plaintiff’s claims are barred in whole, or in part, by the doctrine of estoppel.
148. Defendants are entitled to the benefits of statutory immunity from liability as
provided in Chapter 2744 of the Ohio Revised Code.
These affirmative defenses contain no facts whatsoever, and therefore do not meet the
plausibility standards laid out in Twombly and Iqbal. The Court therefore STRIKES without
prejudice Highland’s affirmative defenses 9, 27-29, and 35. See Nixson v. The Health Alliance,
No. 10-cv-338, 2010 WL 5230867, *3 (S.D. Ohio Dec. 16, 2010) (striking without prejudice
Defendants’ affirmative defenses for failure to meet the Twombly/Iqbal pleading requirements.)
As the Court in Nixson made clear, “the Court does not require [Highland] to specify all conduct
or facts giving rise to each defense. However, the defenses must contain sufficient factual
allegations from which the Court can plausibly infer the existence of a legitimate defense.” Id.
In their current state, they do not contain any factual allegations. Highland’s attempt to add facts
in its response brief is unavailing—the proper vehicle for Highland to add factual support to its
affirmative defenses is in a motion to amend its pleading.
Affirmative Defenses 2–5, 7–8, 10, 26, 30, 32, 36–40
Doe argues that Affirmative Defenses 2–5, 7–8, 10, 26, 30, 32, and 36–40 are immaterial
or insufficient on their faces, and she requests that the Court should strike them with prejudice.
(Doc. 119-1 at 2.) According to Doe, these affirmative defenses are “mere boilerplate,” and
“facially without merit” because they cannot “succeed under any circumstances.” (Id. at 2.)
The affirmative defenses that Doe seeks to strike with prejudice are as follows:
115. Plaintiff’s claims want for jurisdiction over the subject matter.
116. Plaintiff’s claims want for jurisdiction over Defendants.
117. Plaintiff’s claims want for sufficiency of process.
118. Plaintiff’s claims want for sufficiency of service of process.
120. Plaintiff failed to exhaust her administrative remedies.
121. Plaintiff has failed to join an indispensable and/or necessary party to this action,
pursuant to FED. R. CIV. P. 19 and failed to plead any reason for such non-joinder.
123. Plaintiff cannot establish a prima facie case under 42 U.S.C. § 1983.
139. Superintendent Dodds and Principal Winkelfoos have been sued in their
respective official capacities.
143. Plaintiff’s claims are barred in whole, or in part, by the doctrines of laches.
145. The injuries and damages alleged by Plaintiff were the result of Plaintiff’s
comparative and/or contributory negligence.
149. Attorney fees cannot be asserted against Defendants.
150. Punitive damages cannot be asserted against Defendants.
151. Costs cannot be asserted against Defendants.
152. The Complaint is not properly verified.
153. Defendants reserve the right to assert defenses, affirmative or otherwise, not
specifically asserted herein.
As discussed in section II, supra, striking affirmative defenses is a drastic remedy;
striking them with prejudice is necessary only when a defense is insufficient as a matter of law.
With the exception of Affirmative Defenses 10, 36-38, and 40, “the insufficiency of the
defense[s] [are] not clearly apparent, or  [they] raise factual issues that should be determined
on a hearing on the merits.” Joe Hand Promotions, Inc., 2013 WL 3876176, at *1. This is so
because Highland did not develop the defenses such that the Court can evaluate their
plausibility—they are, with the exception of Affirmative Defense 26, legal conclusions with no
And Affirmative Defense 26 is a factual conclusion with no legal basis.
Therefore, the Court declines to strike with prejudice affirmative defenses 2–5, 7–8, 26, 30, 32,
or 39. On the other hand, for the reasons stated in Section III(A), supra, the information
deficiencies require the Court to strike them without prejudice for failure to meet the
Twombly/Iqbal plausibility standard.
By contrast, the Court will strike Affirmative Defenses 10, 36-38, and 40 with prejudice
because the insufficiency of these defenses is “clearly apparent.” Joe Hand Promotions, Inc.,
2013 WL 3876176, at *1. Affirmative Defenses 10, 36, and 38 (“Plaintiff cannot establish a
prima facie case under 42 U.S.C. § 1983”; “Attorney fees cannot be asserted against Defendants;”
“costs cannot be asserted against Defendants”) are not affirmative defenses. The elements of
Doe’s prima facie case, including her damages, are already in issue through Doe’s complaint.
See, e.g., Dana Corp. v. Blue Cross & Blue Shield Mut. of Northern Ohio, No. C87–7734, 1990
WL 264716, at *9 (N.D. Ohio Dec. 14, 1990) (striking “affirmative defenses” that attack
Plaintiff’s prima facie case and damages); Whirlpool Properties, Inc. v. LG Electronics U.S.A.,
Inc., No. 1:03–CV–414, 2005 WL 3088339, at *23 (W.D. Mich. Nov. 17, 2005) (striking
“affirmative defenses” that attack Plaintiff’s prima facie case); Chowning v. Kohl's Dept. Stores,
Inc., No. CV 15–08673, 2016 WL 7655753, at *3 (C.D. Cal. Apr. 1, 2016) (“An affirmative
defense absolves a defendant of liability ‘even where the plaintiff has stated a prima facie case
for recovery.’ . . . . An attack on a plaintiff's case-in-chief is not an affirmative defense.”).
Affirmative Defense 37 (“Punitive damages cannot be asserted against Defendants”) has no bearing
on Plaintiff’s claims because Plaintiff does not seek punitive damages. Finally, Affirmative
Defense 40 (“Defendants reserve the right to assert defenses, affirmative or otherwise, not
specifically asserted herein”) is “improper because reserving the right to an affirmative defense is
a legal nullity.” Peters, 2015 WL 1022031, at *4.
For the reasons stated above, the Court GRANTS in part and DENIES in part Doe’s
Motion to Strike Highland’s Affirmative Defenses. (Doc. 119.) The Court STRIKES with
prejudice affirmative defenses 10, 36-38, and 40 and STRIKES without prejudice affirmative
defenses 2-5, 7-9, 26-29, 30, 32, 35, and 39.
IT IS SO ORDERED.
s/Algenon L. Marbley _______
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: August 21, 2017
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