Forester v. Great White Pressure Control LLC

Filing 19

ORDER granting 8 Motion to Strike. Dft is granted leave to amend its answer within fifteen days of entry of this order, as more fully set out. Signed by Honorable David L. Russell on 11/21/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARK FORESTER,
Plaintiff,
v.
GREAT WHITE PRESSURE
CONTROL, LLC,

Defendant.

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Case No. CIV-16-967

ORDER
Before the Court is Plaintiff’s Motion to Strike Certain Affirmative Defenses
pursuant to Federal Rule of Civil Procedure 12(f). (Doc. 8). That motion is GRANTED.
This suit involves allegations made by Plaintiff, a former employee of Defendant,
for disability discrimination under the Americans with Disabilities Act and the Oklahoma
Anti-Discrimination Act and for interference with his rights under the Family Medical
Leave Act (“FMLA”). (Doc. 1, Ex. 2). Plaintiff seeks to strike the following of
Defendant’s affirmative defenses:
 waiver (seventh affirmative defense)
 estoppel (eighth affirmative defense)
 “every allegation . . . barred by the statute of limitations” (fourteenth
affirmative defense)

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 “legitimate, non-discriminatory” and “business” reasons (fifteenth and
eighteenth affirmative defenses)
 good faith (sixteenth and twenty-fifth affirmative defenses)
Plaintiff argues these defenses are not defenses, are legally insufficient, or are
insufficiently pled under Twombly1 and Iqbal2 to provide notice as to the basis for the
defense.
The first three challenged defenses—waiver, estoppel, and statute of limitations
(paras. 7, 8, 14)—are easily disposed of. Defendant has agreed to withdraw those
defenses.3
Regarding the good faith defense (paras. 16, 25), the Court reminds the parties that
it has already extended the pleading standards of Twombly and Iqbal to answers:
Unless and until the Tenth Circuit holds otherwise, this Court
holds that affirmative defenses other than the failure to
mitigate damages are subject to the pleading requirements of
Rule 8, F.R.Civ.P. and Bell Atlantic Corp v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), as explicated
with respect to claims, only, in Bryson v. Gonzales, 534 F.3d
1282, 1286-87 (10th Cir. 2008). Thus, unless the factual
basis for an affirmative defense is clear from the face of the
complaint, e.g., where the claim asserted is clearly barred by
the applicable statute of limitations, in which case the mere
statement that the claim is barred by that statute is sufficient, a
defendant must allege a sufficient factual basis or bases for
his or its affirmative defense to show that the defense is
plausibly viable on its face or sufficient factual matter from
which a court can infer potential viability.

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007).
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Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009).
3
Of course, Defendant’s attempt to reserve its right to amend is not operative, and any subsequent
amendment of the answer will be subject to Federal Rule of Civil Procedure 15 and will be considered
upon motion by Defendant. 
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Gibson v. OfficeMax, Inc., Case No. CIV-08-1289-R, Order dated January 30, 2009, p. 2.
The Tenth Circuit has yet to alter this Court’s decision to apply the standard, and nothing
in Defendant’s brief provides this Court with a basis to reconsider its prior decision.
Invoking that standard, the Court agrees with the Plaintiff that Defendant has failed to
sufficiently plead any facts in support of its contention that its actions were taken in good
faith, which is an affirmative defense to punitive damages under the FMLA. As such, the
Court strikes that defense from the Answer.4
The Court also strikes Defendant’s affirmative defenses that it acted for legitimate,
non-discriminatory and business reasons (paras. 15, 18); these defenses are not
“affirmative defenses” in that Defendant does not bear the burden of proof on them.
Thus, their inclusion in the Answer, or more importantly, their striking from the Answer,
is of no consequence to Defendant’s ability to raise those arguments in this action.
Defendant denies throughout its Answer that it discriminated against Plaintiff, and these
more precise statements of denial included as “affirmative defenses” neither add nor
detract from the denial, and were likely made out of an abundance of caution.
In accordance with the foregoing, Plaintiff’s Motion to Strike (Doc. 8) is
GRANTED and paragraphs 7, 8, 14, 15, 16, 18, and 25 of Defendant’s list of affirmative
Defenses in its Answer is STRICKEN pursuant to Federal Rule of Civil Procedure 12(f).
Defendant is granted leave to amend its answer to sufficiently state the factual basis for

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The striking of an affirmative defense from the answer does not preclude Defendant from raising the
issue as the case moves forward. Rather, if Defendant succeeds in including the issue in the final pretrial
order, which is the controlling document for trial, its absence from the Answer will be without effect. See
e.g., McKenzie v. Benton, 388 F.3d 1342, 1349 (10th Cir. 2004).
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its affirmative defense of good faith, if it can do so, within fifteen days of entry of this
Order.

IT IS SO ORDERED this 21st day of November 2016.

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