McCarty v. Public Service Company of Oklahoma

Filing 28

ORDER by Judge Frank H. Seay granting 18 Motion to Strike Certain of Defendant's Defenses (trl, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
FRED McCARTY,

)
)
Plaintiff, )
)
v.
) No. CIV-11-186-FHS
)
PUBLIC SERVICE COMPANY OF
)
OKLAHOMA,
)
)
Defendant. )

Order
Before the court for its consideration is Plaintiff’s Motion
To Strike Certain Of Defendant’s Defenses With Authority.

For

the reasons set forth below the court grants the plaintiff’s
motion.
Plaintiff filed this motion requesting this court to either
enter judgment on the pleadings or to strike insufficiently pled
affirmative defenses. In the motion, plaintiff argued the Answer
filed by defendant did not comply with the standards enumerated
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Plaintiff is requesting this court to strike defendant’s
Affirmative Defense # 6, which is the same action defense;
Affirmative Defense #7, which is the good faith defense;
Affirmative Defense # 8, which is the Farragher-Ellerth defense;
Affirmative Defense #9, which is the estoppel, laches, waiver
defense and Affirmative Defense #13, which stated an
unconditional reservation of right to amend.
Defendant responded there is conflicting authority about
Twombly’s application to an Answer and that regardless of the
standard that would be applied to the Answer their defenses are
sufficiently pled.

The Tenth Circuit Court of Appeals has not specifically
addressed whether the Twombly standard applies to an Answer.
However, Judge Payne who also presides in the Eastern District of
Oklahoma has addressed the issue. In Pezzuto v. Premier
Hospitality, Inc., 2010 WL 2788163 (2010) Judge Payne noted:
The District Court for the Western District of Oklahoma
addressed a similar challenge in Schlottman v. Unit
Drilling Co., L.L.C., 2009 WL 1764855 (W.D.Okla. June
18, 2009). In Schlottman, the Hon. Robin Cauthron,
held, assuming, without deciding, that affirmative
defenses must be pleaded in conformance with the
guidelines set forth in Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In determining the sufficiency of a responsive
pleading, it must be compared and considered in
connection with the complaint itself. It is likely that
an answer, with or without affirmative defenses, will
contain fewer factual assertions than a complaint and
still be sufficient. Plaintiffs often are forced to
plead generalities because of lack of information
and/or because necessary information is in the
possession of defendants and cannot be obtained prior
to discovery. Thus, the standards for pleading a claim
are necessarily liberal. What is primary is that the
complaint “show[ ] that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This pleading
requirement serves two purposes. First, it ensures that
defendants know the actual grounds of the claim against
them, and can therefore prepare a defense. Second, it
avoids ginning up the costly machinery associated with
our civil discovery regime on the basis of a largely
groundless claim. Bryson v. Gonzales, 534 F.3d 1282,
1287 (10th Cir.2008) (internal citation and quotation
marks omitted).
Judge Payne further noted:
Although this Court recognizes the Schlottman decision
is not controlling authority, this Court finds it to be
well reasoned and persuasive. This Court agrees with
the Schlottman Court that by the very nature of bare
allegations contained in the Complaint, the Answer and
asserted defenses will often be pled in generalities.
Without deciding the issue, if this Court were to
impose the requirements set forth in Rule 8(a)(2) and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.

1955, 167 L.Ed.2d 929 (2007) to the Defendants'
affirmative defenses, when the Defendants' Answers are
read in conjunction with the Plaintiff's Complaint,
this Court finds the Answers are sufficient to satisfy
this pleading standard. The Answers and asserted
defenses of both Defendants are sufficient to place the
Plaintiff on notice of the defenses they intend to
allege. Pezzuto at 2.
This court agrees with both Judge Payne and Judge Cauthorn
and also assumes without deciding that Twombly applies to an
Answer.

In the case at the bar, however, the allegations

contained in defendant’s Answer are not even a generality.

They

merely cite the name of the defense the defendant is asserting.
They contain no valid factual basis for their assertion.
Defendant had pled these defenses in hopes that they might
somehow and in some way, possibly apply.

This is wholly

insufficient under the Twombly standard.

The court finds the

defendant’s affirmative defense numbers 6,7,8,9 and 13
insufficient under the Twombly standard and orders them stricken.
IT IS SO ORDERED this 10th day of August, 2011.