Bailey v. Gibson Hotel Management, Inc. et al (RLJ2)
Filing
46
MEMORANDUM OPINION: Plaintiff's motions to strike [docs. 29, 33, and 38] will be denied, Defendant GHMI's alternative motion for leave to amend its answer [doc. 38] will be granted, and Defendant Webster's request for leave to file an amended answer [doc. 40] will be granted. An order consistent with this opinion will be entered. Signed by District Judge R Leon Jordan on November 6, 2018. (AYB) (Main Document 46 replaced on 11/6/2018) (ADA).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TONYA BAILEY,
Plaintiff,
v.
GIBSON HOTEL MANAGEMENT, INC.,
ROBERT L. WEBSTER, II
Defendants.
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No. 3:18-CV-167
MEMORANDUM OPINION
This matter is before the Court on Plaintiff’s motions to strike the defendants’
answers and deem averments not denied as admitted [docs. 17, 29], and Plaintiff’s motion
to strike Defendant Gibson Hotel Management Inc.’s (“GHMI”) amended answer as
untimely [doc. 33]. Defendant GHMI has responded to the motion to strike its initial
answer [doc. 32], and Plaintiff has replied [doc. 34]. Defendant GHMI has also responded
to the motion to strike its amended answer [doc. 38], and Defendant Webster has responded
to Plaintiff’s motion to strike his answer [doc. 40].
I.
Background
Tonya Bailey, the plaintiff, has filed suit against GHMI, her former employer, and
Robert L. Webster, II, the President and Chief Operating Officer of GHMI, raising claims
of: (1) sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann.
§ 4-21-401, et seq.; (2) hostile work environment under Title VII and the THRA;
(3) retaliation under Title VII and the THRA; (4) assault and battery; and (5) intentional
infliction of emotional distress. [Doc. 1 at 1, 12-17]. Plaintiff alleges that, while working
at GHMI, Defendant Webster made unwelcome sexual advances toward her on several
occasions. [Id. at 6-9]. Plaintiff alleges that she reported Defendant Webster’s conduct to
human resources on numerous occasions, but no action was taken until June 2017, when
GHMI offered Plaintiff $15,000 in exchange for signing a statement releasing GHMI from
any legal liability for Defendant Webster’s actions. [Id. at 6-10]. When plaintiff refused
to sign the statement, she was terminated. [Id. at 11-12].
Defendants have filed answers to Plaintiff’s amended complaint, and GHMI filed a
first amended answer. [Docs. 14, 18, 31]. Plaintiff has moved to: (1) strike portions of
both defendants’ initial answers; (2) strike the entirety of GHMI’s amended answer; and
(3) deem averments in her complaint admitted. [Docs. 17, 29, 33].
II.
Standard of Review
Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). “Generally, motions to strike are disfavored and will be denied unless
the allegations have no possible relation or logical connection to the subject matter of the
controversy and may cause some form of significant prejudice to one or more of the parties
to the action.” Mayes v. Envtl. Prot. Agency, No. 3:05-cv-478, 2006 WL 2709237, at *4
(E.D. Tenn. Sept. 20, 2006) (internal quotation marks omitted); see also Scott v. Regions
Bank, No. 2:08-cv-296, 2010 WL 908790, at *3 (E.D. Tenn. Mar. 12, 2010) (“Striking
pleadings is a drastic remedy and motions to strike pleadings are disfavored”). The Sixth
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Circuit has noted that “the action of striking a pleading should be sparingly used by the
courts. It is a drastic remedy to be resorted to only when required for the purposes of
justice.” Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.
1953) (citations omitted). Motions to strike are a matter for the court’s discretion. Lincoln
Elec. Co. v. Nat’l Standard, LLC, No. 1:09-cv-1886, 2010 WL 1133861, at *1 (N.D. Ohio
Mar. 22, 2010).
III.
Analysis
A. Motions to Strike Defendant GHMI’s Initial Answer and Amended Answer
In her motion to strike Defendant GHMI’s initial answer, Plaintiff asserts that
numerous portions of Defendant GHMI’s answer should be deemed admitted, because the
answer fails to specifically admit or deny the allegations in the complaint, as required under
Federal Rule of Civil Procedure 8(b)(1)(B). [Doc. 17 at 4-20]. Instead, many of Defendant
GHMI’s responses to the complaint state that the allegations fail to state a claim upon
which relief may be granted. [Id.]. Plaintiff also requests that paragraph 4, be stricken as
immaterial, because it states that Plaintiff’s allegations involve events in 2016, and none
of the allegations of the complaint relate to illegal conduct in 2016. [Id. at 4]. Moreover,
Plaintiff contests Defendant GHMI’s claim that certain allegations in the complaint should
be excluded under Federal Rule of Evidence 408. 1 [Id. at 9-17, 20]. Additionally, Plaintiff
seeks to strike paragraphs 109 and 137 of Defendant GHMI’s answer under Rule 408. [Id.
at 17-19].
1
Rule 408 sets forth the rules for the admissibility of evidence stemming from compromise
offers and negotiations. Fed. R. Evid. 408.
3
After Plaintiff’s motion to strike, Defendant GHMI filed an amended answer,
correcting the issues raised by Plaintiff, with the exception of the Rule 408 issues. [Doc. 31
at 1-25]. Defendant GHMI indicated that it was filing the amended answer as a matter of
course, pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), and in reliance on Mills
v. BlueCross BlueShield of Tenn., Inc., No. 3:15-cv-552, 2017 WL 78488 (E.D. Tenn. Jan.
9, 2017), which Defendant GHMI stated allows a party to amend a pleading without leave
of court within 21 days of receiving a motion to strike. [Doc. 30 at 1]. Defendant GHMI
also filed a response to the motion to strike asserting that the pleading stage was not the
proper time for a Rule 408 challenge, and the remaining objections in Plaintiff’s motion to
strike were mooted by the filing of the amended answer. [Doc. 32 at 3-4].
Plaintiff then filed a motion to strike Defendant GHMI’s amended answer in its
entirety, asserting that the amended answer was procedurally improper, because it did not
fall within the mandate of Rule 15(a)(1) that an amended answer as a matter of course be
filed within 21 days of service of the answer. [Doc. 33 at 1-2]. Plaintiff contends that Mills
only applies to amending a complaint, not an answer. [Id. at 3].
Plaintiff also filed a reply to Defendant GHMI’s response to the first motion to
strike, asserting that Defendant GHMI’s attempt to amend without Plaintiff’s consent or
leave of court is fatal. [Doc. 34 at 1]. Plaintiff complains that Defendant both relies upon
Rule 408 and uses Rule 408 to attach evidence, “irrespective of the Rule’s lack of
applicability to the pleading requirements.” [Id. at 2]. Plaintiff states that the current stage
of litigation is not an appropriate time for this Court to rule on the admissibility of evidence
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under Rule 408, and the only issue is whether Defendant GHMI properly admitted or
denied the averments in the complaint. [Id. at 5].
Defendant GHMI responds to Plaintiff’s motion to strike the amended answer, and
alternatively, moves this Court for leave to amend its answer. [Doc. 38]. Defendant GHMI
reiterates that its amendment as a matter of course was proper under Mills. [Id. at 1-2].
Defendant GHMI also notes that it sought Plaintiff’s consent to file an amended answer,
and Plaintiff refused consent. [Id. at 2]. Nonetheless, Defendant GHMI states that, to the
extent that this Court finds that it did not properly amend its answer as a matter of course,
this Court should grant leave to amend. [Id. at 3].
As an initial matter, although both parties have argued in their pleadings and filings
that the other party’s factual allegations in the complaint and answer are inadmissible and
should be stricken under Rule 408, both parties now admit that this stage of the proceeding
is not the appropriate time to raise Rule 408 matters. [Doc. 32 at 3-4; Doc. 34 at 2, 5].
Accordingly, this Court will not address the Rule 408 issues at this time. 2
A party may amend a pleading as a matter of course within 21 days after serving it.
Fed. R. Civ. P. 15(a)(1)(A). However, if the pleading is “one to which a responsive
pleading is required,” a party may amend the pleading within 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f).
Fed. R. Civ. P. 15(a)(1)(B). In all other cases, a party may amend its pleading only with
2
This Court notes that the parties argued this issue extensively before admitting that the
pleading stage was not a proper time for such debate. The Court encourages the parties not to raise
issues in their filings that are not proper for the Court’s consideration at the current stage of the
proceeding, and to participate in the instant litigation in good faith.
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the consent of the opposing party or with the court’s leave. Fed. R. Civ. P. 15(a)(2). Courts
are to grant such leave freely when justice so requires. Id. This Court reiterated these rules
in Mills. 2017 WL 78488, at *1-2.
Plaintiff is correct that Defendant GHMI’s amended answer is untimely under Rule
15(a)(1)(A). Defendant GHMI filed its initial answer, through the Court’s Electronic Case
Filing System (“ECF”), on May 31, 2018 [doc.14], which constituted service of the
pleading. See ECF Rules and Procedures of the U.S. Dist. Ct. for the E.D. of Tenn., Rule
9 (stating that the notice of electronic filing generated through the ECF shall, upon
transmission by the Court, constitute service of the filed document upon Filing Users
participating in a pending action). Accordingly, Defendant GHMI had until June 21, 2018
to file an amended answer as a matter of course, and their amended answer, filed July 9,
2018, was untimely under Rule 15(a)(1)(A). Mills is inapplicable, because it merely
reiterates Rule 15(a)(1)(B), which only applies to pleadings to which a responsive pleading
is required—not an answer. See Fed. R. Civ. P. 15(a)(1)(B); Mills, 2017 WL 78488, at
*1-2.
Nonetheless, because Defendant GHMI has requested leave of court to file an
amended answer, this Court will grant such leave. This Court finds that granting leave to
amend is appropriate, as Plaintiff will not be prejudiced, 3 and such procedure complies
with the policy favoring disposition of a case on the merits, rather than technicalities at the
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This Court notes that Defendant GHMI alleges that it requested Plaintiff’s consent to file
an amended answer, in response to Plaintiff’s first motion to strike, and Plaintiff denied such
consent. This Court encourages Plaintiff to participate in the instant litigation in good faith.
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pleading stage. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 48 (1957)).
Accordingly, Defendant GHMI’s alternative motion for leave to amend its answer
[doc. 38] will be granted. Plaintiff’s motion to strike Defendant GHMI’s initial answer
[doc. 17] and motion to strike Defendant GHMI’s amended answer [doc. 33], will be
denied.
B. Motion to Strike Defendant Webster’s Answer
Similarly, in her motion to strike portions of Defendant Webster’s answer, Plaintiff
asserts that numerous portions of Defendant Webster’s answer should be deemed admitted,
because the answer fails to specifically admit or deny the allegations in the complaint, as
required under Rule 8(b)(1)(B). [Doc. 29 at 3-18]. Instead, many of Defendant Webster’s
responses to the complaint state that the allegations fail to state a claim upon which relief
may be granted, and state that the allegations are inadmissible pursuant to Rule 408.
Plaintiff contests Defendant Webster’s claim that certain allegations should be excluded
under Rule 408. [Id.]. Additionally, Plaintiff seeks to strike from the answer any of
Defendant Webster’s denials which demand “strict proof,” arguing that such is improper
and clearly violates Rule 8(b). [Id. at 18-19]. Finally, Plaintiff seeks to strike Defendant
Webster’s affirmative defenses that do not meet the Twombly/Iqubal 4 plausibility standard.
[Id. at 20-24]. Plaintiff asserts that several of Defendant Webster’s affirmative defenses
are bereft of any facts making it “plausible” that such defenses could succeed. [Id. at 23].
4
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662
(2009).
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Defendant Webster responds that his answers to the averments in Plaintiff’s
complaint placed Plaintiff on clear notice that the allegations failed to state a claim, and he
would rely on Rule 408 to seek exclusion at the appropriate time, and therefore, his
responses should not be stricken. [Doc. 40 at 3]. Additionally, Defendant Webster asserts
that, although he did not use the term “admit” or “deny” in several of his responses, he
provided enough factual detail to notify Plaintiff that he was denying her role as an
employee rather than an independent contractor, and such responses should not be stricken.
[Id. at 4-5]. Defendant Webster further argues that his demands for “strict proof” should
not be stricken, because they do not alter the standard of proof to which Plaintiff will be
subjected at trial. [Id. at 5]. Finally, Defendant Webster argues that his affirmative
defenses should not be stricken. [Id. at 5-7]. To the extent that this Court finds that his
responses were not proper under Rule 8, Defendant Webster requests leave of court to
submit an amended answer. [Id. at 1].
Initially, as discussed above, although both parties have argued in their pleadings
and filings that the other party’s factual allegations in the complaint and answer are
inadmissible and should be stricken under Rule 408, both parties now admit that this stage
of the proceeding is not the appropriate time to raise Rule 408 matters. [Doc. 34 at 2, 5;
Doc. 40 at 3]. Accordingly, this Court will not address the Rule 408 issues at this time.
i.
Responses to Plaintiff’s Allegations
Rule 8(b) requires that a party, in responding to a pleading “admit or deny the
allegations asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1)(B). The rule
requires that a denial fairly respond to the substance of the allegation. Fed. R. Civ. P.
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8(b)(2). If a party does not intend to deny all of the allegations in a complaint, the party
“must either specifically deny designated allegations or generally deny all except those
specifically admitted.” Fed. R. Civ. P. 8(b)(3). If a party lacks knowledge or information
sufficient to form a belief about the truth of an allegation, the party must state such, and
the statement will have the effect of a denial. Fed. R. Civ. P. 8(b)(5). Answers that neither
admit nor deny, but simply demand proof of the plaintiff’s allegations are insufficient to
constitute a denial. Revocable Living Trust of Stewart I v. Lake Erie Utilities Co.,
3:14-cv-2245, 2015 WL 2097738, at *3 (N.D. Ohio May 5, 2015). If a responsive pleading
is required and an allegation is not denied, the allegation is deemed admitted.
Fed. R. Civ. P. 8(b)(6).
It appears that Defendant Webster’s answer, to the extent that it fails to specifically
admit, deny, or state a lack of sufficient knowledge regarding the allegations in the
complaint, and rather, states that allegations do not state a claim for relief, does not comply
with Rule 8(b). Although Defendant Webster’s responses may contain factual allegations
that indicate an intent to deny Plaintiff’s allegations, under Rule 8(b), Defendant Webster
is required to “specifically deny designated allegations” or deny all allegations except those
“specifically admitted.” Fed. R. Civ. P. 8(b)(3). Nonetheless, given that Defendant
Webster has requested leave to file an amended answer, this Court finds that it is
appropriate to allow Defendant Webster to amend his answer, rather than invoking the
“drastic remedy” of striking portions of the answer. Accordingly, Defendant Webster’s
request for leave of court to file an amended answer will be granted and Plaintiff’s motion
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to strike will be denied as to Defendant Webster’s responses to the allegations in the
complaint.
ii.
Affirmative Defenses
Twombly and Iqbal modified the pleading requirements for complaints by creating
a plausibility standard. Sewell v. Allied Interstate, Inc., No. 3:10-cv-113, 2011 WL 32209,
at *6 (E.D. Tenn. Jan. 5, 2011). However, the Supreme Court did not state in Twombly or
Iqbal, or any case since, that this heightened pleading standard applies to defenses, and the
Sixth Circuit has not expanded Twombly and Iqbal to apply to defenses. Id. However,
district courts across the country are split on whether the Twombly and Iqbal heightened
pleading standard applies to affirmative defenses. Id. (collecting cases).
Under the current Sixth Circuit approach, “[a]n affirmative defense may be pleaded
in general terms and will be held to be sufficient . . . as long as it gives plaintiff fair notice
of the nature of the defense.” Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir. 2006)
(internal quotation marks omitted). In Lawrence, which involved a § 1983 civil rights
action, the Sixth Circuit held that it was sufficient for the defendants to plead that they were
“entitled to qualified immunity for all activities complained of in this complaint.” Id. The
Sixth Circuit has also held, post-Twombly, that a defendant sufficiently pleaded a
statute-of-repose defense when its answer stated that “Plaintiff’s causes of action are barred
in whole or in part by the applicable statues of limitations and repose.” Montgomery v.
Wyeth, 580 F.3d 455, 467 (6th Cir. 2009).
Because Twombly and Iqbal do not expressly apply to defenses, and because the
Sixth Circuit has not expanded the heightened pleading standard to affirmative defenses,
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this Court declines to do so. Accordingly, the Court finds that Defendant Webster’s
affirmative defenses give Plaintiff fair notice of his defenses. No more is required as this
stage. Plaintiff’s motion to strike Defendant Webster’s affirmative defenses will be denied.
IV.
Conclusion
For the reasons stated herein, Plaintiff’s motions to strike [docs. 17, 29, and 33] will
be denied, Defendant GHMI’s alternative motion for leave to amend its answer [doc. 38]
will be granted, and Defendant Webster’s request for leave to file an amended answer [doc.
40] will be granted. An order consistent with this opinion will be entered.
s/ Leon Jordan
United States District Judge
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