RONALD S.W. LEW

ORDER re: Plaintiff's Motion to Strike Affirmative Defenses

under Rule 12(f) or For Summary Judgment or Partial Summary Judgment in the Alternative [38]

On February 1, 2012, Plaintiff Chris Kohler's ("Plaintiff") Motion to Strike Affirmative Defenses under Rule 12(f) or For Summary Judgment or Partial Summary Judgment in the Alternative [38] came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to this Motion and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS in part and DENIES in part Plaintiff's Motion to Strike under Federal Rule of Civil Procedure 12(f) and DENIES Plaintiff's Motion for Summary Judgment. Under Rule 12(f), the Court may strike "an insufficient defense or any redundant, immaterial, impertinent or scandalous" matter from the pleadings. Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is "to avoid the expenditure of time and money that must arise from litigating spurious issues by disposing of those issues prior to trial." Sidney-Vinstein v. A.H. Robbins Co., 697 F.2d 880, 885 (9th Cir. 1983). If a court strikes an affirmative defense, leave to amend should be freely granted, provided there is no prejudice to the moving party. Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979).

Plaintiff has requested that the Court strike all forty-seven of Defendant Bed Bath & Beyond of California, LLC's (hereafter "Defendant") Affirmative Defenses. In its Opposition, Defendant has withdrawn twenty of its Affirmative Defenses; therefore, the Court will only address Defendant's remaining Affirmative Defenses.

The Court finds that Defendant's First Affirmative Defense, failure to state a claim, fails as a matter of law because it is not an affirmative defense but rather a failure of Plaintiff's prima facie case. Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174 (N.D. Cal. 2010) (ruling that failure to state a claim is not a proper affirmative defense). Therefore, the Court hereby GRANTS Plaintiff's Motion to Strike as to Defendant's First Affirmative Defense. Defendant's First Affirmative Defense is STRICKEN with prejudice as no facts can be pled to constitute a proper affirmative defense.

The Court finds that Defendant's Second Affirmative Defense, expiration of the statute of limitations, is properly pled and is an appropriate affirmative defense. Daingerfield Island Protective Soc. v. Babbitt, 40 F.3d 442, 445 (D.C. Cir. 1994) (ruled that statute of limitations defense was properly pled by its bare assertion). Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Second Affirmative Defense.

As to Defendant's Third and Fourth Affirmative Defenses, negligence of third parties, the Court finds that this defense fails as a matter of law under the ADA. "[T]he ADA is clear that a public accommodation is responsible for its own violations of the ADA, and that such violations cannot be contracted away." United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092, 1118 (C.D. Cal. 2002) (rev'd on other grounds) (rejecting the defendant's affirmative defense of third party negligence). Therefore, the Court hereby GRANTS Plaintiff's Motion to Strike as to Defendant's Third and Fourth Affirmative Defense with leave to amend.

As to Defendant's Sixth Affirmative Defense, no basis for attorney's fees under California Code of Civil Procedure § 1021.5, Plaintiff claims that he is not seeking attorney's fees under § 1021.5, and thus, the defense should be stricken as irrelevant. The Court finds that while Plaintiff has sought attorney's fees from Defendant under § 1021.5 [Compl. at 43], the Affirmative Defense should be stricken because it is not an affirmative defense but rather a failure of Plaintiff's prima facie case. Therefore, the Court hereby GRANTS Plaintiff's Motion to Strike as to Defendant's Sixth Affirmative Defense. Defendant's Sixth Affirmative Defense is STRICKEN with prejudice because no facts can be pled to constitute a proper affirmative defense.

The Court finds that Defendant's Seventh and Tenth Affirmative Defenses, good faith and legitimate business purpose, are properly pled and could potentially relate to Plaintiff's state law claims or claims for punitive damages. Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Seventh and Tenth Affirmative Defenses.

The Court finds that Defendant's Eighth Affirmative Defense, equivalent facilitation, is sufficiently pled and is a proper affirmative defense against Plaintiff's claims under the ADA and California's Unruh Act. ADAAG § 2.3; 28 C.F.R. § 36.402. Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Eighth Affirmative Defense.

As to Defendant's Thirteenth Affirmative Defense, unclean hands, Plaintiff argues that it must be stricken because it is inapplicable as a matter of law to ADA claims. The Court finds that the Affirmative Defense is properly pled with sufficient facts and could relate to Plaintiff's numerous state law claims. Specifically, Defendant alleges that Plaintiff is deliberately targeting Defendant's stores and asserting false and misleading accusations. Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Thirteenth Affirmative Defense.

As to Defendant's Eighteenth Affirmative Defense, not readily or likely achievable, Plaintiff argues that it was not sufficiently pled to constitute a defense. Plaintiff is correct when he states that Defendant has made a bare assertion without additional facts to support the defense, but the case law Plaintiff cites to, Molsk v. Foley Estates Vineyard, 531 F.3d 1043 (9th Cir. 2008), does not support his argument that Defendant is required to allege more at the pleading stage. Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Eighteenth Affirmative Defense.

The Court finds that Defendant's Twentieth Affirmative Defense, reliance on municipal permits/vested rights, is properly pled and applicable to Plaintiff's California state law claims. Plaintiff's only argument is that any state or local permits would be preempted by the ADA, but Plaintiff also makes state law claims, which would not be preempted here. Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Twentieth Affirmative Defense.

The Court finds that Defendant's Twenty-Second and Twenty-Fifth Affirmative Defenses, de minimis deviations and reasonable portion of facility accessible, are properly pled and recognized defenses. Cherry v. City College of San Francisco, 2006 WL 6602454, at *5-6 (N.D. Cal. January 12, 2006) (recognizing the ADA's allowance for reasonable variances and equivalent facilitation). Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Twenty-Second and Twenty-Fifth Affirmative Defenses.

The Court finds that Defendant's Twenty-Eighth and Twenty-Ninth Affirmative Defenses, existence of adequate legal remedy and no basis for injunctive relief, are not affirmative defenses, but rather failures in Plaintiff's prima facie case for an injunction. Therefore, the Court hereby GRANTS Plaintiff's Motion to Strike as to Defendant's Twenty-Eighth and Twenty-Ninth Affirmative Defenses. Defendant's Twenty-Eighth and Twenty-Ninth Affirmative Defenses are STRICKEN with prejudice as no facts can be pled to constitute a proper affirmative defense.

As to Defendant's Thirtieth through Thirty-Third Affirmative Defenses, lack of standing, Plaintiff argues that these are not true affirmative defenses and must be stricken. While standing is an essential element of a plaintiff's claim, some courts have recognized it as an affirmative defense. Solis v. Couturier, No. 08-02732-RRB, 2009 WL 3055207 at *1 (E.D. Cal. Sept. 17, 2009) ("Lack of standing is a recognized affirmative defense"). Therefore, the Court hereby DENIES Plaintiff's Motion to Strike as to the Thirtieth through Thirty-Third Affirmative Defenses.

The Court finds that Defendant's Forty-Fourth Affirmative Defense, a claim for attorney's fees, is not a valid affirmative defense. If it prevails, Defendant can bring a properly noticed and factually supported motion for attorney's fees after the Court has made a final ruling in this case. Therefore, the Court hereby GRANTS Plaintiff's Motion to Strike as to Defendant's Forty-Fourth Affirmative Defense. Defendant's Forty-Fourth Affirmative Defense is STRICKEN with prejudice as no facts can be pled to constitute a proper affirmative defense.

Finally, the Court hereby DENIES Plaintiff's Motion for Summary Judgment. Plaintiff has failed to make any supporting argument regarding the Motion, and the Court finds that Defendant has pled sufficient facts in its Affirmative Defenses to create a genuine issue of material fact.

In sum, the Court hereby GRANTS Plaintiff's Motion to Strike as to Defendant's First, Third, Fourth, Sixth, Twenty-Eighth, Twenty-Ninth, and Forty-Fourth Affirmative Defenses. The Court allows Defendant 20 days leave to amend as to Defendant's Third and Fourth Affirmative Defenses. The Court hereby DENIES Plaintiff's Motion to Strike as to Defendant's Second, Seventh, Eighth, Tenth, Thirteenth, Eighteenth, Twentieth, Twenty-Second, Twenty-Fifth, and Thirty through Thirty-Third Affirmative Defenses. Additionally, the Court DENIES Plaintiff's Motion for Summary Judgment.

IT IS SO ORDERED.

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HONORABLE RONALD S.W. LEW

Senior, U.S. District Court Judge