H.S. Field Services, Inc. v. CEP Mid-Continent, LLC

Filing 48

OPINION AND ORDER by Judge John E Dowdell Plaintiff's Motion to Strike Defendant's Affirmative Defenses (Doc. 16) is denied. ; denying 16 Motion to Strike (Re: 14 Answer ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
H.S. FIELD SERVICES, INC.,
Plaintiff,
v.
CEP MID-CONTINENT, LLC,
Defendant.

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Case No. 12-CV-531-JED-PJC

OPINION AND ORDER
The Court has for its consideration “Plaintiff’s Motion to Strike Defendant’s Affirmative
Defenses” (Doc. 16), in which plaintiff requests that the Court strike all affirmative defenses set
forth in the defendant’s Answer. For the reasons set forth herein, the Motion is denied.
I.

Background
Plaintiff’s First Amended Complaint asserts claims against defendant for open account,

work, labor and services provided, and breach of contract. (Doc. 13). Defendant’s Answer
alleges several defenses: (a) failure to state claims upon which relief can be granted; (b) that
plaintiff’s claims are barred by its own breaches of the parties' contract; (c) that plaintiff’s
claims are barred by its own failures to fulfill conditions precedent to any obligations of
defendant; (d) failure of consideration; (e) plaintiff’s improper conduct bars any recovery; (f)
payment; (g) frustration of purpose; (h) failure to mitigate; (i) set off; (j) plaintiff’s claims are
barred by the terms of the contract; (k) accord and satisfaction; and (l) that punitive damages
are not allowed for claims arising in contract. (Doc. 14 at 4-6). Defendant also asserted a
counterclaim against plaintiff for breach of contract. (Id. at 6-13).

Plaintiff moves to strike all

of defendant’s defenses, based upon plaintiff’s assertion that the list of defenses is merely a
“laundry list” and that defendant has failed to allege specific facts supporting each defense.

II.

Discussion
Pursuant to Fed. R. Civ. P. 12(f), the Court “may strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike
affirmative defenses pursuant to Rule 12(f) “are disfavored and are infrequently granted.”
United States v. Hardage, 116 F.R.D. 460, 463 (W.D. Okla. 1987); 5 C. Wright & A.
Miller, Federal Practice and Procedure: Civil § 1381 (3d ed.) (collecting cases). A motion
to strike “ seeks a ‘ drastic remedy’ and must not be granted unless, as a matter of law, the
defense cannot succeed under any circumstances” or unless it is clear that the affirmative
defenses clearly have no bearing upon the subject matter of the litigation or the defenses are
clearly insufficient as a matter of law. Hardage, 116 F.R.D. at 463-64 (citations omitted); see
also Fed. Dep. Ins. Corp. v. Niver, 685 F. Supp. 766, 768 (D. Kan. 1987) (“A motion to strike
will usually be denied unless the allegations have no possible relation to the controversy and may
cause prejudice to one of the parties.”).
Courts review with scrutiny motions to strike that seek the determination of disputed and
substantial questions of law, particularly when no significant discovery has occurred in the case.
Hardage, 116 F.R.D. at 463. “A defense should not be stricken ‘if there is any real doubt’
about its validity, and ‘the benefit of the doubt should be given to the pleader.’” Sender v.
Mann, 423 F. Supp. 2d 1155, 1163-64 (D. Colo. 2006) (quoting Bobbitt v. Victorian House,
Inc., 532 F. Supp. 734, 737 (N.D. Ill. 1982)).

The reason for this rule is that “the very

possibility of waiver makes it important (and certainly prudent) to plead all appropriate
affirmative defenses,” and “the cautious pleader is fully justified in setting up as affirmative
defenses anything that might possibly fall into that category, even though that approach may

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lead to pleading matters as affirmative defenses that could have been set forth in simple denials."
Bobbitt, 532 F. Supp. at 736.
Rule 8 requires that a defendant “state in short and plain terms its defenses to each claim
asserted against it,” and the rule lists numerous, specific affirmative defenses which must be set
forth if the defendant claims them to be applicable. Fed. R. Civ. P. 8(b)(1)(A), (c). In addition, a
“party may state as many separate claims or defenses as it has, regardless of consistency.” Fed.
R. Civ. P. 8(d)(3).
Courts are split as to whether the pleading requirements for complaints, which are set
forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009), apply to statements of affirmative defenses. See, e.g., Falley v. Friends Univ., 787 F.
Supp. 2d 1255, 1256-57 (D. Kan. 2011) (holding that those standards do not apply to affirmative
defenses and collecting cases disagreeing as to whether Twombly / Iqbal standards govern
affirmative defenses); Constr. Ind. Laborers Pension Fund v. Explosive Contractors, Inc., No.
12-2624-EFM, 2013 WL 3984371 (D. Kan. Aug. 1, 2013) (noting disagreement between judges
of the District of Kansas as to whether Twombly / Iqbal standards apply to defenses and holding
that those standards do apply to affirmative defenses); Holdbrook v. Saia Motor Freight Line,
LLC., No. 09-CV-2870-LTB-BNB, 2010 WL 865380, *2 (D. Colo. Mar. 8, 2010) (noting
disagreement amongst district courts and concluding best approach is that Twombly / Iqbal
standards do not apply to affirmative defenses); see also Pezzuto v. Premier Hospitality Mgmt.,
Inc., No. 10-CV-068-JHP, 2010 WL 2788163 (E.D. Okla. July 14, 2010) (noting difference of
opinion on the issue and denying motion to strike without deciding the issue, because the plain
and short statement of defenses provided sufficient notice when read in conjunction with the
complaint); Schlottman v. Unit Drilling Co., LLC, No. Civ-08-1275-C, 2009 WL 1764855 (W.D.

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Okla. June 18, 2009) (noting that answers are often necessarily stated without factual detail
because defendants are responding to plain statements of claim in a complaint; denying a motion
to strike defenses).
Plaintiff does not attack the legal validity of any specific defense asserted by defendant,
but only generally seeks to strike all defenses. Based upon review of the claims set forth in the
Amended Complaint and the defendant’s Answer and affirmative defenses, the Court need not
determine whether the Twombly / Iqbal pleading standards apply to the defendant’s averment of
defenses. Even assuming that those standards apply, and also applying the standards applicable
to motions to strike defenses, the defenses asserted by defendant in this action are “plausible”
defenses to the types of contract claims asserted by plaintiff in its Amended Complaint. See
Twombly, 550 U.S. at 555-56, 570. The Court also notes that defendant has provided sufficient
descriptions of those defenses to put plaintiff on notice as to the nature of the defenses asserted,
consistent with the purpose of Rule 8(c). See, e.g., Marino v. Otis Eng’g Corp. , 839 F.2d 1404,
1408 (l0th Cir. 1988) (raising an issue as a defense three months prior to trial served “the purpose
behind Rule 8(c) . . . of putting ‘plaintiff on notice well in advance of trial that defendant intends
to present a defense in the nature of an avoidance.’”).
IT IS THEREFORE ORDERED that the Motion to Strike Defendant’s Affirmative
Defenses (Doc. 16) is denied.
IT IS SO ORDERED this 25th day of September, 2013.

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