Opinion
No. CV-10-299-PHX-DGC.
July 14, 2010
ORDER
Plaintiffs have filed a motion to amend the complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. Doc. 32. Defendants do not oppose the motion. Pursuant to Rule 15(a)(2) and in the interest of justice, the Court will grant the motion. Plaintiffs shall have until July 23, 2010 to file the proposed amended complaint. See Doc. 32-1.
Because the amended complaint will add the City of Phoenix as a Defendant ( see id. ¶ 5), the case management conference scheduled for July 9, 2010 (Doc. 27) was vacated. The conference will be reset after all Defendants have answered or otherwise responded to the amended complaint.
Plaintiffs also have filed, pursuant to Rule 12(f), a motion to strike certain affirmative defenses to the complaint asserted by Defendant Quikjet LLC. Doc. 30. The motion will be denied as moot given that an amended complaint will be filed. For purposes of affirmative defenses to the amended complaint, and potential motions to strike one or more of those defenses, the Court will give the parties some guidance.
"Motions to strike are generally regarded with disfavor, but are proper when a defense is insufficient as a matter of law." Torres v. Goddard, No. CV-06-2482-PHX-SMM, 2008 WL 1817994, at *1 (D. Ariz. Apr. 22, 2008). "A defense is insufficient if it fails to give the plaintiff fair notice of the nature of the defense." McArdle v. AT T Mobility LLC, 657 F. Supp. 2d 1140, 1149 (N.D. Cal. 2009).
Quikjet's affirmative defenses of patent invalidity, unclean hands, estoppel, laches, and waiver (Doc. 25 ¶¶ 13, 15, 16) are insufficient, Plaintiffs argue, because they are without factual basis or a showing of plausibility as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Doc. 30 at 1-2. Recognizing that Twombly addressed only the sufficiency of a complaint under Rule 8(a), Plaintiffs assert that there is every reason to believe that the Twombly pleading standard applies equally to affirmative defenses. Id. at 2. The Court does not agree, and will leave any extension of Twombly to the Supreme Court or this Circuit.
The pleading of affirmative defenses is governed by Rule 8(c). That rule requires only that a party "affirmatively state any avoidance or affirmative defense." Fed.R.Civ.P. 8(c)(1) (emphasis added). It does not contain the language from Rule 8(a) requiring a "short and plain statement of the claim showing the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2) (emphasis added). Nor does it include the "short and plain terms" language found in Rule 8(b). Fed.R.Civ.P. 8(b)(1)(A); see McLemore v. Regions Bank, Nos. 3:08-cv-0021, 3:08-cv-1003, 2010 WL 1010092, at *12 (M.D. Tenn. Mar. 18, 2010) ("Unlike subsections (a) and (b), subsection (c) does not include any language requiring the party to state anything in 'short and plain' terms."). The Court is of the view that the pleading standards enunciated in Twombly and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), have no application to affirmative defenses pled under Rule 8(c). See McLemore, 2010 WL 1010092, at *13; First Nat'l Ins. Co. of Am. v. Camps Servs., Ltd., No. 08-cv-12805, 2009 WL 22861, at *2 (E.D. Mich. Jan. 5, 2009) ( Twombly's "analysis of the 'short and plain statement' requirement of Rule 8(a) is inapplicable to this motion under Rule 8(c)"); Romantine v. CH2M Hill Eng'rs, Inc., No. 09-973, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009) ("This court does not believe that Twombly is appropriately applied to either affirmative defenses under [Rule] 8(c), or general defenses under Rule 8(b), and declines to so extend the Supreme Court ruling[.]"); Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB, 2010 WL 865380, at *2 (D. Colo. Mar. 8, 2010) (declining to apply Twombly and Iqbal to affirmative defenses in part because a defendant is given only 20 days to respond to a complaint and assert its affirmative defenses).
IT IS ORDERED:
1. Plaintiffs' motion to amend complaint (Doc. 32) is granted.
2. Plaintiffs shall file the proposed amended complaint by July 23, 2010.
3. Plaintiffs' motion to strike affirmative defense (Doc. 30) is denied.
4. The case management conference set for July 9, 2010 at 4:00 p.m. is vacated.
5. The Court will reset the conference by separate order.