Nelson v. US Federal Marshal's Service et al

Filing 37

ORDER granting 26 Motion to Stay; denying 24 Motion to Strike signed by Judge J Richard Creatura.(MET)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PATRICK W NELSON, et al.,

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Plaintiff,

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CASE NO. 3:16-CV-05680-BHS-JRC
ORDER ON MOTION TO STRIKE

v.
US FEDERAL MARSHAL'S SERVICE
et al,.

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Defendants.
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Before the Court is (1) plaintiffs’ motion to dismiss improperly pled affirmative defenses

17 and strike improperly pled facts (Dkt. 24) (hereinafter “motion to strike”) and (2) defendants’
18 motion to stay the motion to strike (Dkt. 26). Although plaintiffs’ style their motion as a motion
19 to dismiss pursuant to Rule 12(b)(6), the Court finds that the motion is properly construed as a
20 motion to strike pursuant to Rule 12(f). Because plaintiffs’ failed to file their motion to strike
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ORDER ON MOTION TO STRIKE - 1

1 within 21 days after defendants’ answer was filed, the Court denies plaintiffs’ motion (Dkt. 24)
2 as untimely. The Court grants defendants’ motion to stay (Dkt. 26). 1
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DISCUSSION

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1. Motion to Stay (Dkt. 26)

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On February 9, 2017, defendants filed a motion to stay requesting that the Court stay

6 plaintiffs’ motion to strike (Dkt. 24) for thirty days as counsel for defendants was recently out of
7 the office for a week to attend the birth of his child. Dkt. 26. Plaintiffs objected to defendants’
8 request for an extension, arguing that their motion was not complex, was the “fodder of first and
9 second year associates,” and that simply because one attorney from the Attorney General’s
10 Office is on leave that does not mean it is “impractical for the other 573 attorneys in the AG’s
11 office to draft and file an opposition….” Dkt. 28 at 2.
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Plaintiffs’ objection is not well taken. Defendants have shown good cause for the

13 extension and the motion is granted. The Court will consider defendants’ response filed on
14 February 27, 2017 (Dkt. 30) and plaintiffs’ reply (Dkt. 31) in ruling on plaintiffs’ motion to
15 strike (Dkt. 24).
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2. Motion to Strike (Dkt. 24)

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Plaintiffs’ style their motion as a “[Rule] 12(b)(6) Motion to Dismiss Improperly Pled

18 Affirmative Defenses and to Strike Improperly Pled Facts.” Dkt. 24 (hereinafter “motion to
19 strike”). Plaintiffs seek to dismiss affirmative defenses: 1, 2, 3, 5, 6, 8, 9, 10, 11, and 12 and to
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Defendants have also filed a motion to amend their answer, which is noted for the
Court’s consideration on March 31, 2017. Dkt. 32. Defendants seek to amend their answer to
22 reflect that defendants Poston and Weber were acting as United States Marshalls, not as
Washington Department of Corrections employees. See Dkt. 32. Because defendants do not seek
23 to amend their answer in accordance with plaintiffs’ motion to strike, the motion to amend (Dkt.
32) does not render plaintiffs’ motion to strike moot (Dkt. 24). Defendants’ motion for summary
24 judgment is also pending, and ready for the Court’s consideration on April 21, 2017. Dkt. 36.
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ORDER ON MOTION TO STRIKE - 2

1 strike improper answers set forth in paragraphs: 24, 25, 26, 28, 32, 29, 43, 54, 5, and 58 in
2 defendants’ answer. Id. Plaintiffs argue that defendants’ answer fails to allege enough facts to
3 support their affirmative defenses under Twombly and Iqbal. Dkt. 24 at 7 (citing Bell Atlantic
4 Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Defendants
5 argue that the motion to strike should be denied because plaintiffs fail to comply with the Federal
6 Rules of Civil Procedure in bringing their motion. Dkt. 30.
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A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of a claim” and relies on

8 matters within the complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Fed. R.
9 Civ. Proc. 12(b)(6). To survive a motion to dismiss, a complaint “must contain sufficient factual
10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v.
11 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
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On the other hand, Federal Rule of Civil Procedure 12(f) provides that a court may, on its

14 own or on a motion, “strike from a pleading an insufficient defense or any redundant, immaterial,
15 impertinent, or scandalous matter.” The court may only strike material from a pleading if it falls
16 within one of these five categories. Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973–74
17 (9th Cir. 2010). Motions to strike “are generally disfavored because they are often used as
18 delaying tactics and because of the limited importance of pleadings in federal practice.” Rosales
19 v. Citibank, 133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001).
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The leading treatise on federal procedure states:

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A motion to strike under Federal Rule 12(f) is the appropriate remedy for the
elimination of redundant, immaterial, impertinent, or scandalous matter in any
pleading, and is the primary procedure for objecting to an insufficient
defense....Rule 12(f) also is designed to reinforce the requirement in Rule 8(e) that
pleadings be simple, concise, and direct. However, as the cases make clear, it is

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ORDER ON MOTION TO STRIKE - 3

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neither an authorized nor a proper way to procure the dismissal of all or a part of a
complaint, or a counterclaim, or to strike an opponent's affidavits.

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Wright and Miller, 5C Fed. Prac. & Proc. Civ. § 1380 (3d ed.).
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Moreover, in finding that “the “fair notice’ required by the pleading standards only
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requires describing the defense in ‘general terms[,]’” the Ninth Circuit arguably rejected
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applying the Twombly plausibility standard to pleading affirmative defenses. Kohler v. Flava
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Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015), quoting Wright & Miller; See also
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Walker v. Charter Communications Inc, 2016 WL 3563483, *3 (D. Nev. 2016) (court found no
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reason to alter its position that Iqbal standard does not apply to affirmative defenses); Federal
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Trade Commission v. Vemma Nutrition Company, 2016 WL 3548762, *1 (D. Ariz. 2016)
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(Twombly standard does not apply to affirmative defenses).
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Plaintiffs cite to case law from district courts in California in support of their motion. See
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Dkt. 24. However, none of these cases are binding on this court, nor do they stand for the
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proposition that the proper vehicle to raise such issues is a Rule 12(b)(6) motion to dismiss,
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instead of a Rule 12(f) motion to strike. For example, defendants cite to Barnes v. AT & T
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Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010), which
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held that Twombly and Iqbal applied to the pleading of affirmative defenses, but considered the
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issue pursuant to a Rule 12(f) motion to strike. Dkt. 24 at 8 (citing Qarbon.com Inc. v. eHelp
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Corp., 315 F.Supp. 2d 1046, 1050 (N.D. Cal. 2004) (striking affirmative defenses under Rule
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12(f) for failure to allege factual basis); Ganley v. Cty. of San Mateo, 2007 WL 902551, at *2
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(N.D. Cal. Mar. 22, 2007) (same); Smith v. Wal-Mart Stores, 2006 WL 2711468, at *2 (N.D.
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Cal. Sept. 20, 2006) (same)).
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Thus, because plaintiffs seek to strike various affirmative defenses and allegations, their
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motion in substance is a Rule 12(f) motion to strike and should be properly treated as such. See
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ORDER ON MOTION TO STRIKE - 4

1 U.S. v. Retta, 840 F. Supp. 2d 262, 268 (D.D.C. 2012) (interpreting Rule 12(b)(6) motion as Rule
2 12(f) motion) (citing See Simba v. Fenty, 754 F.Supp.2d 19, 23 (D.D.C. 2010) (stating that Rule
3 12(f) Motion to Strike, not Rule 12(b)(6) Motion to Dismiss, is appropriate means of challenging
4 remedy)).
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Federal Rule of Civil Procedure 12(f) states:

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The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:

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(1) on its own; or
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(2) on motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.
Although defendants do not challenge the timeliness of plaintiffs’ motion, under the plain

11 language of Rule 12(f)(2), the motion is untimely. Defendants filed their answer on December
12 28, 2016. Dkt. 19. Plaintiffs were served with the answer on the same day, via the Court’s
13 CM/ECF electronic filing system. See id. The motion to strike was signed by plaintiffs’ counsel
14 on January 24, 2017, however it was not filed with the Court until February 3, 2017. Dkt. 24.
15 Nevertheless, according to either date, plaintiff’s motion was filed after the 21-day time period
16 provided for in Rule 12(f)(2). While the court retains discretion to consider the arguments sua
17 sponte, it declines to do so. See Fed. R. Civ. P. 12(f)(1) (allows the court to act “on its own”
18 without a time restriction). Thus, the Court denies plaintiffs’ motion (Dkt. 24) as untimely.
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Dated this 17th day of March, 2017.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON MOTION TO STRIKE - 5