Sutton et al v. Chanceford Township et al

Filing 47

MEMORANDUM OPINION AND ORDER re: 44 MOTION to Strike filed by Terry Sutton, Brenda Sutton. The pltfs motion to strike is GRANTED in part and DENIED in part as follows: the motion is GRANTED with respect to dfts sixth, eighth, ninth , tenth and seventeenth affirmative defenses--which recite in a summary fashion affirmative defenses based upon statute of limitations; equitable estoppel; collateral estoppel; unclean hands; and lachesbut without prejudice to the filing of an amende d answer renewing these affirmative defenses upon a showing that some facts give rise to the defenses in this particular case. The motion is DENIED with respect to the dfts seventh, thirteenth, eighteenth and twenty fourth affirmative defenses. Signed by Magistrate Judge Martin C. Carlson on February 28, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TERRY SUTTON, d/b/a CINKAJ
BROGUE LIMITED PARTNERSHIP,
BRENDA SUTTON d/b/a CINKAJ
BROGUE LIMITED PARTNERSHIP,
CHRIS CINKAJ, d/b/a/ CINKAJ
BROGUE LIMITED PARTNERSHIP,
Plaintiff
v.
CHANCEFORD TOWNSHIP, et al.,
Defendants

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Civil No. 1:14-CV-1584
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Introduction

Currently before this Court is the plaintiffs’ motion to strike certain
affirmative defenses enumerated by the defendants in this case. (Doc. 44.)
Specifically, in this motion, the plaintiffs move pursuant to Rule 12(f) of the
Federal Rules of Civil Procedure to strike a series of affirmative defenses which
were outlined by the defendants in the defendants’ answer to this complaint,
alleging that these defenses which are outlined in a summary fashion, fail as a

matter of law.1 In their motion to strike, the plaintiffs launch a twofold attack upon
these affirmative defenses, arguing that they are insufficiently pleaded, since the
affirmative defenses are set forth in a boilerplate fashion, and further contending
that some of these affirmative defenses are waived because they have not been
presented prior to the filing of the defendants’ answer. For the reasons set forth
below, this motion to strike will be granted, in part, and denied, in part.
II.

Background

The plaintiffs in this action are a group of real estate developers and coowners of a business known as Cinkaj Brogue Limited Partnership (referred to
collectively as “plaintiffs” or “developer”). The plaintiffs own a shopping center
development in Chanceford Township, York County, Pennsylvania. The plaintiffs
allege that in 2013 their partnership was denied a zoning permit necessary to open
a cabaret featuring nude dancing in the shopping center. The plaintiffs have sued
Chanceford Township and several of its officials alleging that that Township’s
denial of their request for a special exception needed to open their intended adult
entertainment business violated their rights under the United States and
Pennsylvania Constitutions. The plaintiffs’ chief argument seems to be that the
Chanceford Township zoning ordinance operates as a prior restraint on protected
These affirmative defenses include: failure to state a claim; statute of limitations;
qualified immunity; equitable estoppel; collateral estoppel; unclean hands;
immunity; laches; failure to plead punitive damages; and failure to state official
capacity claims.
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speech, and thereby violates the First Amendment. The plaintiffs have also made a
claim that the ordinance, as applied to their application, violated the plaintiffs’
rights under the First Amendment, in particular by arguing that the stated bases
given for denying the special exception were pretextual cover for the real reason
the permit was denied, namely, a moral aversion to allowing the plaintiffs’ to open
a business that featured nude dancing. The plaintiffs seek damages and declaratory
relief.
Following the resolution of a number of preliminary motions to dismiss, the
defendants filed an answer to the complaint with identified some 25 affirmative
defenses. (Doc.39.) The plaintiffs have now moved to strike a number of these
affirmative defenses, arguing that the defenses are either insufficiently pleaded or
have been waived by the defendants. (Doc. 44.) This motion to strike is now fully
briefed (Docs. 44 and 46.) and is, therefore, ripe for resolution.
For the reasons set forth below, the motion to strike will be granted, in part,
and denied, in part.
III.

Discussion

Rule 12(f) of the Federal Rules of Civil Procedure governs motions to strike
pleadings and provides, in part, that:
(f) Motion to Strike. The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.
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F. R.Civ. P., Rule 12(f).
While rulings on motions to strike rest in the sound discretion of the court,
Von Bulow v. Von Bulow, 657 F.Supp. 1134, 1146 (S.D.N.Y. 1987), that
discretion is guided by certain basic principles. Because striking a pleading is
viewed as a drastic remedy, such motions are “generally disfavored.”

Kaiser

Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1057 (C.A.La., 1982).

As one court has aptly observed:

“striking a party's

pleadings is an extreme measure, and, as a result, . . . ‘[m]otions to strike under
Fed .R.Civ.P. 12(f) are viewed with disfavor and are infrequently granted.’
Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977) (citing 5 Wright &
Miller, Federal Practice and Procedure. Civil § 1380 at 783 (1969)). See also,
Resolution Trust Corp. v. Gibson, 829 F.Supp. 1103, 1106 (W.D.Mo.1993); 2
James Wm. Moore et al., Moore's Federal Practice § 12.37[1] (3d ed. 2000).”
Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000). In practice,
courts should exercise this discretion and strike pleadings only when those
pleadings are both “redundant, immaterial, impertinent, or scandalous” and
prejudicial to the opposing party. Ruby v. Davis Foods, Inc., 269 F.3d 818, 820
(7th Cir. 2001).
In this case, the plaintiffs move to strike a litany of affirmative defenses
listed by the defendants in their answer to the complaint. In support of this motion,
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the plaintiffs argue that these affirmative defenses have not been pleaded with the
type of specificity and precision needed to state a claim upon which relief may be
granted.

The difficulty with this argument as it is framed by the plaintiffs,

however, is that it confuses the pleading standards required of complaints with the
separate, and lesser, standard of pleading called for when enumerating affirmative
defenses. As this Court has observed:
A textual analysis of Rule 8's different terms and requirements for
pleading claims and asserting affirmative defenses demonstrates why
different standards apply. Federal Rule of Civil Procedure 8(a) states:
“[a] pleading that states a claim for relief must contain ... a short and
plain statement showing that the pleader is entitled to relief....” Fed.
R. Civ. P. 8(a)(2) (emphasis added). In its Iqbal and Twombly
decisions, the Supreme Court focused on this “showing” requirement
when establishing the plausibility standard for pleading claims. See
Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937; Twombly, 550 U.S. at 555
n. 3, 127 S.Ct. 1955; see also Phillips v. Cnty. of Allegheny, 515 F.3d
224, 234 (3d Cir.2008) (“ ‘Plausibility’ is related to the requirement of
a Rule 8 ‘showing.’ ”). In contrast, Rule 8(c) applies to affirmative
defenses and requires a party only to “affirmatively state any
avoidance or affirmative defense.” Fed. R. Civ. P. 8(c) (emphasis
added). Therefore, the plausibility standard applicable to pleading
claims based on a “showing” does not apply to affirmative defenses
that a party must merely “state.” Courts that do not apply the
plausibility standard to affirmative defenses often decline to do so on
these grounds. See, e.g., Tyco Fire Prods. LP v. Victaulic Co., 777
F.Supp.2d 893, 900–902 (E.D.Pa.2011).

Mifflinburg Tel., Inc. v. Criswell, 80 F. Supp. 3d 566, 573 (M.D. Pa. 2015).
Therefore, “[a] party may satisfy the fair notice requirement by including a short
and plain statement of the grounds for asserting an affirmative defense that
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demonstrates a logical relationship to the lawsuit or refer to general facts elsewhere
in any parties' pleadings. The statement need not rise to the level of plausibility,
but allegations must exist somewhere in the pleadings such that parties and the
court may draw a logical inference from the asserted defenses to the events
underlying litigation. See 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1382 (3d ed.).” Id. at 574. However, even under this
lesser standard of pleading which is applicable to affirmative defenses, this Court
has held that an answer which “merely list[s] these defenses out in rote fashion and
do not state in any way why defendants are entitled to them,” is legally insufficient
and may be stricken. Peoples State Bank of Wyalusing, PA v. Wellsburg Truck
Auto Sales, Inc., No. 3:10-CV-433, 2010 WL 4922877, at *4 (M.D. Pa. Nov. 29,
2010).

When the court is presented with affirmative defenses set forth in a

summary manner that are entirely unmoored to the facts of the case, the better
course is to strike the affirmative defenses without prejudice to the defendants
amending their answer to include “citation to any other fact or premise from which
an inference may arise that the stated defense is logically related to the case in any
way.” Mifflinburg Tel., Inc. v. Criswell, 80 F. Supp. 3d 566, 574 (M.D. Pa. 2015).
In this case, upon consideration of the defendants’ sixth, eighth, ninth, tenth
and seventeenth affirmative defenses--which recite in a summary fashion
affirmative defenses based upon statute of limitations; equitable estoppel; collateral
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estoppel; unclean hands; and laches—we find that the litany of these defenses is
done in a rote fashion without any citation to any other fact or premise from which
an inference may arise that the stated defense is logically related to the facts of this
case. Therefore, as to these affirmative defenses we agree that the defenses should
be stricken without prejudice to renewal by the defendants upon a showing that
some facts give rise to the defense in this particular case.
However, with respect to the defendants’ eighteenth affirmative defense,
which asserts that the plaintiffs are not entitled to punitive damages, we believe
that the answer read as a whole provides a factual basis for concluding that this
defense may be applicable to the instant case. Therefore, a motion to strike this
defense will be denied. Likewise we believe that the answer, construed as a whole,
provides citation to other facts from which an inference may arise that defenses
based upon qualified immunity would be logically related to the case. Therefore,
the motion to strike the seventh and thirteenth affirmative defenses will be denied.
Further, we conclude that the defendants have not waived any defense premised
upon the settled notion that official capacity damages claims may not be brought
against governmental officials in their official capacity. In our view this particular
affirmative defense is not one of those defenses which must be raised prior to the
filing of an answer.

See Rule 12(h)(1), Federal Rules of Civil Procedure.

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Therefore, this defense, which is set forth as the defendants’ twenty-fourth
affirmative defense, is not deemed waived and will not be stricken. 2
An appropriate order consistent with this memorandum follows:
IV.

Order

Accordingly, for the foregoing reasons, the plaintiffs’ motion to strike is
GRANTED in part and DENIED in part as follows: the motion is GRANTED
with respect to defendants’ sixth, eighth, ninth, tenth and seventeenth affirmative
defenses--which recite in a summary fashion affirmative defenses based upon
statute of limitations; equitable estoppel; collateral estoppel; unclean hands; and
laches—but without prejudice to the filing of an amended answer renewing these
affirmative defenses upon a showing that some facts give rise to the defenses in
this particular case.

The motion is DENIED with respect to the defendants’

seventh, thirteenth, eighteenth and twenty fourth affirmative defenses.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: February 28, 2017

Finally, we note that the plaintiffs also moved to strike the defendants’ first
affirmative defense, an assertion that the plaintiffs’ complaint failed to state a
claim upon which relief may be granted. Our resolution of the motion to dismiss
filed in this case has addressed this question, and we now regard this issue as moot.
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