Davilla et al v. Enable Midstream Partners LP

Filing 42

ORDER granting 13 plaintiffs' Motion to Strike Defendants' First and Second Affirmative Defenses and striking defendants' first and second affirmative defenses (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 8/19/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCIA W. DAVILLA, et al.,
Plaintiffs,
vs.
ENABLE MIDSTREAM PARTNERS,
L.P., et al.,
Defendants.

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Case No. CIV-15-1262-M

ORDER
Before the Court is plaintiffs’ Motion to Strike Defendants’ First and Second Affirmative
Defenses, filed January 8, 2016. On March 7, 2016, defendants filed their response, and on March
14, 2016, plaintiffs filed their reply. Based upon the parties’ submissions, the Court makes its
determination.
I.

Introduction
On November 16, 2015, plaintiffs filed the instant action seeking injunctive relief and

damages against defendants arising from defendants’ alleged continued unauthorized use of
plaintiffs’ land. On December 15, 2015, defendants filed their answer, which included affirmative
defenses based on Federal Rules of Civil Procedure 17 and 19. Plaintiffs now move, pursuant to
Federal Rule of Civil Procedure 12(f), to strike defendants’ first and second affirmative defenses.
II.

Discussion
Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or

any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). While motions
to strike are generally disfavored, the decision to grant a motion to strike is within the discretion of
the court. See Scherer v. United States Dep’t of Educ., 78 Fed. App’x 687, 689 (10th Cir. 2003).

Having carefully reviewed the parties’ submissions, and because the issues raised in relation to the
affirmative defenses are matters of law, the Court finds it is appropriate to rule on plaintiffs’ motion
to strike. Further, while the Tenth Circuit has not ruled on whether Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) apply to pleading affirmative
defenses, this Court has ruled that they do apply. See Burget v. Capital W. Secs., Inc., Case No.
CIV-09-1015-M, 2009 WL 4807619 (W.D. Okla. Dec. 8, 2009). The Court, therefore, finds that the
affirmative defenses at issue in this case must satisfy the pleading standards set forth in Twombly
and Iqbal.
A.

Affirmative defense based upon Rule 17

In their second affirmative defense, defendants assert: “Plaintiffs have failed to comply with
Rule 17 of the Federal Rules of Civil Procedure, in that it is unsettled whether Plaintiffs, as
beneficiaries of a restricted allotment, may prosecute this action in their individual capacities.”
Answer [docket no. 6] at 14. Having carefully reviewed the parties’ submissions and the case law,
the Court finds that it is well established that individual allottees may bring an independent action
to protect their interests in lands that are held in trust by the federal government for their benefit.
See Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 368-372 (1968) (holding that Indian allottee can
institute court actions to protect his property rights); Sadler v. Pub. Nat’l Bank & Trust Co. of N.Y.,
172 F.2d 870, 874 (10th Cir. 1949) (“A restricted Indian is not without capacity to sue or to be sued
with respect to his affairs, including his restricted property.”) The Court, therefore, finds that
plaintiffs may maintain this trespass action in their individual capacities and that defendants’ second
affirmative defense should be stricken.

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B.

Affirmative defense based on Rule 19

In their first affirmative defense, defendants assert: “Plaintiffs have failed to join a necessary
and proper party under Rule 19 of the Federal Rules of Civil Procedure, namely the BIA, as the
Trustee for the allotment owners, or provide proper legal notice to the BIA.” Answer at 13-14.1
Rule 19(a)(1) provides:
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that disposing
of the action in the person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because
of the interest.
Fed. R. Civ. P. 19(a)(1).
Having carefully reviewed the parties’ submissions, the Court finds that the United States
is not a required party under Rule 19(a). First, the Court finds that even in the United States’
absence, the Court can accord complete relief among the existing parties (plaintiffs and defendants)
in this trespass action. Since the United States is the holder of only the legal title to the trust land
and would claim trespass damages only to benefit the allottees (plaintiffs), this Court can determine
whether defendants are trespassing on the trust land and what damages they might owe to plaintiffs

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In their response, defendants contend that the BIA is a required party for purposes of
defendants’ condemnation counterclaim. On August 18, 2016, the Court granted plaintiffs’ motion
to dismiss defendants’ counterclaim and dismissed defendants’ condemnation counterclaim.
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without the United States as a party. Second, the Court finds that disposing of this action in the
United States’ absence will not impair its ability to protect its interest. The United States’ interest
is only as holder of legal title to the trust land, and if it were to pursue and recover any trespass
damages relating to the trust land, it would be doing so on behalf of plaintiffs and would provide any
recovery to them. Further, the United States’ interest cannot suffer harm because the United States
is not bound by any judgment to which it is not a party. Third, the Court finds that disposing of this
action in the United States’ absence will not subject defendants to multiple or inconsistent
obligations. Since the United States would be bringing a trespass action only on behalf of plaintiffs,
if plaintiffs bring an action on their own, the United States would have no reason to bring a different
or separate action that would result in multiple or inconsistent obligations for defendants.
Finally, numerous courts have held that the United States is not an indispensable/required
party in these situations. See Choctaw and Chickasaw Nation v. Seitz, 193 F.2d 456 (10th Cir.
1951); Bird Bear v. McLean Cty., 513 F.2d 190, 191 n.6 (8th Cir. 1975); Puyallop Indian Tribe v.
Port of Tacoma, 717 F.2d 1251, 1254 (9th Cir. 1983). The Tenth Circuit has found:
We find it difficult to believe that the Supreme Court, in recognizing
the right of restricted Indians, Indian tribes and pueblos to maintain
an action with respect to their lands, was dealing only with the
capacity to maintain the action. Clearly, its language had reference
to suits to which the United States was not a party. We cannot think
the Supreme Court would have dealt so extensively with the mere
capacity of the restricted Indians, the tribes, and pueblos to sue and
defend in respect to their lands, if it regarded the United States as an
indispensable party to the action. A holding that restricted Indians,
tribes, or pueblos have capacity to prosecute or defend an action with
respect to their lands would be of no avail to them, if the United
States is an indispensable party to such an action, since the joinder of
the United States cannot be compelled. We think the inference must
be drawn that the Supreme Court recognized the right of the
restricted Indian, tribe, and pueblo to maintain such an action without
the presence of the United States as a party.
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Choctaw and Chickasaw Nation, 193 F.2d at 459-60.
Accordingly, the Court finds that plaintiffs did not fail to join a required party under Rule
19 and that defendants’ first affirmative defense should be stricken.
III.

Conclusion
For the reasons set forth above, the Court GRANTS plaintiffs’ Motion to Strike Defendants’

First and Second Affirmative Defenses [docket no. 13] and STRIKES defendants’ first and second
affirmative defenses.
IT IS SO ORDERED this 19th day of August, 2016.

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