FLAME S.A. v. INDUSTRIAL CARRIERS, INC. et al

Filing 292

OPINION & ORDER granting in part and denying in part 275 Motion to Strike. CONCLUSION: For the reasons above, the Court: 1) DENIES IN PART Flame's Motion and does not strike FBP's first, third, and eighth affirmative defenses; 2) GR ANTS IN PART Flame's Motion and STRIKES FBP's sixth and seventh affirmative defenses; and 3) PROVIDES FBP LEAVE TO AMEND the stricken affirmative defenses. With trial fast approaching, FBP has until noon on Monday, June 30, 2014 to amend these stricken affirmative defenses to meet the standard articulated herein. Signed by District Judge Robert G. Doumar and filed on 6/24/14. Copies distributed to all Counsel of Record 6/24/14. (ldab, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

FLAME S.A.,
Plaintiff,

GLORY WEALTH SHIPPING PTE LTD.,
Consolidated Plaintiff,

CIVIL NO. 2:13-cv-658

NOBLE CHARTERING, INC.,

Intervening Plaintiff
v.

INDUSTRIAL CARRIERS, INC., VISTA
SHIPPING, INC., and FREIGHT BULK
PTE. LTD.,
Defendants.

OPINION & ORDER

This matter comes before the Court upon Flame S.A.'s ("Flame") Motion to Strike
Freight Bulk PTE Ltd's ("FBP") Affirmative Defenses. ECF No. 275. In the course of their
briefings on this matter, FBP has withdrawn its fourth and fifth affirmative defenses and Flame

has withdrawn its objection to FBP's second affirmative defense. So the Court is left to decide
whether to strike FBP's first, third, sixth, seventh, and eighth affirmative defenses. Pursuant to
Local Civil Rule 7(J) and Federal Rule of Civil Procedure 78(b), the Court reviews the motion
on its papers and, for the reasons herein, GRANTS IN PART and DENIES IN PART Flame's
Motion without oral argument.

I.

PROCEDURAL HISTORY

Succinctly put, the parties' positions are as follows. Flame asks the Court to strike FBP's
affirmative defenses because they are either insufficiently pled or were previously rejected by the
Court. In making its Motion, Flame argues that the heightened Twomblv/Iqbal standard applies
to affirmative defenses. In the alternative to striking any insufficiently pled defenses, Flame asks

the Court to require FBP to amend its Answer. FBP responds that it seeks to preserve its right for
appeal and that the Twomblv/Iqbal standard's application to affirmative defenses is an open

question which should be rejected.
II.

LEGAL STANDARD

Rule 12(f) allows a district court to "strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The Court views
the pled affirmative defenses in the light most favorable to the pleader. Francisco. 2011 WL
98573, at *5 (citing in Clark v. Milam. 152 F.R.D. 66, 71 (S.D. W.Va. 1993)). "To grant a Rule
12(f) motion, the court must determine that the challenged allegations are 'so unrelated to the

plaintiffs claims as to be unworthy of any consideration as a defense and that their presence in
the pleading throughout the proceeding will be prejudicial to the moving party.'" GTSI Corp. v.
Wildflower Int'l. Inc.. 2009 WL 2160451, at *4 (E.D. Va. July 17, 2009) (quoting 5C Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1380 (2d ed. 1990)). "A

plaintiff may demonstrate prejudice if the answer unclearly articulates to which claims the
affirmative defenses apply." Francisco. 2010 WL 2990159, at *5 (citing Westbrook v. Paragon
Svs.. Inc.. 2007 WL 7715075 (S.D. Ala. Nov. 29, 2007) (disapproving of "shotgun pleading of
affirmative defenses" when they fail to distinguish among multiple claims presented in a

complaint)).
"Rule 12(f) motions are generally viewed with disfavor "because striking a portion of a
2

pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory
tactic." Waste Memt. Holdings. Inc. v. Gilmore. 252 F.3d 316, 347 (4th Cir. 2001) (internal

quotations omitted). "Traditionally, [Rule 12(f)] imposes a sizable burden on the movant, and

courts typically strike defenses only when they have no possible relation to the controversy.
Lopez v. Asmar's Mediterranean Food. Inc.. 2011 WL 98573, at *1 (E.D. Va. Jan.10, 2011)

(internal quotations omitted). However, "whenever granted, the defendant should generally be

given leave to amend." Palmer v. Oakland Farms. Inc.. 2010 WL 2605179, at *2 (W.D. Va. June
24,2010).
The Fourth Circuit has not addressed the question. As a result, there is substantial
difference in the Circuit's constituent district courts, see e.g.. Barrett v. Americast. Inc.. 2014

WL 1689737 (N.D. W. Va. Apr. 29, 2014) (gathering cases), and in the Eastern District of
Virginia in particular, see Francisco v. Verizon S.. Inc.. 2010 WL 2990159 (E.D. Va. July 29,

2010) (applying the Twomblv/Iqbal pleading standard to affirmative defenses); but see Grant v.
Bank of Am.. N.A.. 2014 WL 792119 (E.D. Va. Feb. 25, 2014) (declining to do the same);
Lopez v. Asmar's Mediterranean Food. Inc.. 2011 WL 98573 (E.D. Va. Jan. 10, 2011) (same),

regarding Twomblv/Iqbal and their application to affirmative defenses. Having reviewed the law,
the Court agrees that Twomblv/Iqbal do not apply to the pleading of affirmative defenses.
Federal Rule of Civil Procedure 8(b)(1)(A) provides that "a party must. . . state in short

and plain terms its defenses to each claim asserted against it." The Court is bound to apply the
Federal Rules of Civil Procedure as written, Lopez. 2011 WL 98573, at *2 (citing United States
v. Carey. 120 F.3d 509, 512 (4th Cir. 1997)), and Rule 8(b)(1)(A) and Rule 8(a)(2) are not the

same. While both rules require "short and plain" wording, Rule 8(a)(2), which governs

complaints and which Twomblv/Iqbal interpreted, also requires that a party's claim "show[] that

the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). "Prior to the Supreme Court's decisions in
3

Twomblv and Iqbal. the United States Court of Appeals for the Fourth Circuit held that general
statements of affirmative defenses were sufficient provided they gave plaintiffs fair notice of the
defense." Grant. 2014 WL 792119, at *3 (citing Francisco. 2010 WL 2990159, at *6). Given the
plain differences in Rule 8's language, Twomblv/Igbal's interpretation of Rule 8(a) and not Rule
8(b), and the Fourth Circuit's earlier rulings on the issue, the Court applies the pre-

Twomblv/Iqbal standard and examines "whether the challenged defense are contextually

comprehensible," Grant, 2014 WL 792119, at *4, and possibly related to the controversy, Lopez.
2011 WL 98573, at* 1.
III.

APPLICATION

Three of FBP's remaining affirmative defenses meet this standard; two do not. FBP's

first, third, and eighth affirmative defenses provide Flame with "fair notice of the nature of the
defense," Clem v. Corbeau. 98 F. App'x 197, 203 (4th Cir. 2004), and do not prejudice Flame
because it is clear to which claims the affirmative defenses apply. Francisco. 2010 WL 2990159,

at *5. Contextually, all parties know to which claims the first ("Plaintiffs Complaint fails to
state a maritime cause of action for which relief can be granted pursuant to Supplemental Rule B

and thus the Amended Verified Complaint should be dismissed") and third ("Plaintiffs claim is

time-barred pursuant to applicable limitation of action provisions, whether by treaty, statute, law
or equity, including laches.") affirmative defenses apply because of the extensive briefing and
attention each has received. Ignoring this history would surely be missing the forest for the trees.
That the Court has already rejected these arguments in earlier orders and opinions does not
prevent FBP from pleading these as defenses. As FBP has argued, it does so merely to preserve
the defenses on appeal. The Court has yet to consider FBP's eighth affirmative defense

("Plaintiff Flame's damages must be reduced to the extent of any accord and satisfaction or
recovery it has already obtained with respect to the alleged judgment on which it sues."), but its

meaning is clear, especially in the context of an action to enforce a judgment.
The remaining affirmative defenses that have not been withdrawn, however, do not meet

the standard and must be struck. Although FBP has provided more context and clues to its

defenses in its Response to Flame's Motion to Strike, its sixth ("Plaintiff Flame failed to mitigate
damages.") and seventh ("Plaintiff Flame is barred from any equitable remedies due to its
unclean hands.") affirmative defenses are threadbare and provide neither "fair notice of the
nature of the defense," Clem. 98 Fed. App'x at 203, nor clarity as to which claims the defenses
apply, Francisco. 2010 WL 2990159, at *5. The Court therefore strikes these defenses. However,

in light of the general practice to grant leave to amend when a motion to strike is granted,
Palmer. 2010 WL 2605179, at *2, the Court will permit FBP to amend these deficient affirmative
defenses.

IV.

CONCLUSION

For the reasons above, the Court: 1) DENIES IN PART Flame's Motion and does not

strike FBP's first, third, and eighth affirmative defenses; 2) GRANTS IN PART Flame's
Motion and STRIKES FBP's sixth and seventh affirmative defenses; and 3) PROVIDES FBP

LEAVE TO AMEND the stricken affirmative defenses. With trial fast approaching, FBP has
until noon on Monday, June 30, 2014 to amend these stricken affirmative defenses to meet the
standard articulated herein.

The Clerk is DIRECTED to forward a copy of this Opinion & Order to all Counsel of
Record.
IT IS SO ORDERED.

Norfolk VA

June^£,2014