Opinion
No. 2:14-cv-02646-MCE-KJN
07-17-2015
TYLER EDWARDS, Plaintiff, v. COUNTY OF MODOC, et al., Defendants.
MEMORANDUM AND ORDER
In his Complaint (ECF No. 1), Plaintiff Tyler Edwards ("Plaintiff") alleges several causes of action against Defendants County of Modoc, Modoc County Sherriff's Department, Mike Poindexter, and Billy Holshouser (collectively, "Defendants"). Each of Plaintiff's claims stems from Defendant Holshouser's alleged use of excessive force against Plaintiff on October 15, 2013.
Defendants have filed an Answer to Plaintiff's Complaint (ECF No. 11). Pending before the Court is Plaintiff's Motion to Strike (ECF No. 12), which requests that the Court strike all nineteen of the affirmative defenses that Defendants assert in their Answer. For the reasons that follow, Plaintiff's Motion is GRANTED in part and DENIED in part.
STANDARD
An affirmative defense is an "assertion of facts and arguments that, if true, will defeat the plaintiff's [ ] claim, even if all the allegations in the complaint are true." Black's Law Dictionary (10th ed. 2014). A court may strike an insufficiently pled affirmative defense under Federal Rule of Civil Procedure 12(f).
All subsequent references to "Rule" are to the Federal Rules of Civil Procedure.
District courts in this circuit were previously split on whether the heightened pleading standard that the United States Supreme Court announced in Twombly and Iqbal applied to affirmative defenses. Some courts, including this Court, concluded that affirmative defenses were subject to the heightened pleading standard. See, e.g., Wine Group LLC, v. L. and R. Wine Co., No. 2:10-cv-022040-MCE-KJN, 2011 WL 130236, at *2 (E.D. Cal. Jan. 4, 2011); Dodson v. Strategic Rests. Acquisition Co. II, LLC, 289 F.R.D. 595 (E.D. Cal. 2013). Other courts, however, declined to apply the heightened pleading standard to affirmative defenses, citing Wyshak v. City National Bank, 607 F.2d 824, 826 (9th Cir. 1979), for the proposition that the pleadings need only provide the plaintiff "fair notice" of the defense. See, e.g., Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 468 (S.D. Cal. 2013).
See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The Ninth Circuit, however, has resolved the split in the district courts. In Kohler v. Flava Enterprises, Inc., the Ninth Circuit explained that "the 'fair notice' required by the pleading standards only require[s] describing [an affirmative] defense in 'general terms.'" 779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 1274 (3d ed. 1998)). Accordingly, this Court now applies the "fair notice" standard, and not the heightened pleading standard announced in Twombly and Iqbal, when evaluating motions to strike affirmative defenses.
The specific sentence that the Ninth Circuit quoted in Kohler provides: "As numerous federal courts have held, an affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the nature of the defense." Wright & Miller, § 1274 (footnotes omitted).
"[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal quotation marks omitted); see also Fed. R. Civ. P. 15(a).
ANALYSIS
Plaintiff's Motion requests that the Court strike all nineteen of the affirmative defenses that Defendants assert in their Answer. The Court will examine each affirmative defense in turn.
In the first and second affirmative defenses, Defendants assert that Plaintiff's Complaint fails to allege facts sufficient to state a claim. These assertions, however, are not affirmative defenses. See Black's Law Dictionary, supra; see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) ("A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense."). Accordingly, Plaintiff's Motion is GRANTED with respect to the first and second affirmative defenses, and those defenses are STRICKEN from Defendants' Answer.
In the third affirmative defense, Defendants assert that they are entitled to qualified immunity. "[Q]ualified immunity is an affirmative defense," Crawford-El v. Britton, 523 U.S. 574, 587 (1998), and Defendants' Answer gives Plaintiff fair notice of that defense. Accordingly, Plaintiff's Motion is DENIED with respect to the third affirmative defense.
In the fourth affirmative defense, Defendants assert that several of Plaintiff's causes of action fail because his filing of the Complaint "was not preceded by a timely and proper claim made pursuant to" the claims statute, California Government Code sections 910 et seq. "Since compliance with the claims statute is an element of plaintiff's cause of action, failure to comply is not an affirmative defense." Wood v. Riverside Gen. Hosp., 25 Cal. App. 4th 1113, 1119 (1994). Accordingly, Plaintiff's Motion is GRANTED with respect to the fourth affirmative defense, and that defense is STRICKEN from Defendants' Answer.
Defendants' fifth and sixth affirmative defenses are simply additional assertions of qualified immunity. Again, qualified immunity is an affirmative defense, and Defendants' Answer gives Plaintiff fair notice of the defense. See also Fed. R. Civ. P. 8(d)(2) ("A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones."). Accordingly, Plaintiff's Motion is DENIED as to the fifth and sixth affirmative defenses.
Defendants' seventh affirmative defense is that Plaintiff's alleged damages were proximately caused or contributed by other parties. Third-party liability is an affirmative defense, and Defendants' Answer gives Plaintiff fair notice of the defense. See Geurin v. Winston Indus., Inc., 316 F.3d 879, 885 (9th Cir. 2002) (suggesting that the district court erred in dismissing the "affirmative defense of third-party liability"). Accordingly, Plaintiff's Motion is DENIED as to the seventh affirmative defense.
In the eighth affirmative defense, Defendants assert that the United States Constitution, the California Constitution, and the California Government Code bar punitive damages. Defendants' argument is not an affirmative defense, as it will not defeat Plaintiff's claim. See Black's Law Dictionary, supra. Accordingly, Plaintiff's Motion is GRANTED as to the eighth affirmative defense, and that defense is STRICKEN from Defendants' Answer.
In the ninth affirmative defense, Defendants assert that Plaintiff has failed to allege facts sufficient to state a claim against a governmental entity. This assertion is not an affirmative defense. Accordingly, Plaintiff's Motion is GRANTED as to the ninth affirmative defense, and that defense is STRICKEN from Defendants' Answer.
In the tenth affirmative defense, Defendants assert that Plaintiff failed to prevent and mitigate his damages. "[T]he duty to mitigate damages is an affirmative defense . . . ." Wehrs v. Wells, 688 F.3d 886, 893 (7th Cir. 2012). Because Defendants' Answer gives Plaintiff fair notice of the defense, Plaintiff's Motion is DENIED as to the tenth affirmative defense.
In the eleventh affirmative defense, Defendants assert that Plaintiff has failed to allege facts sufficient to state a negligence claim. Again, such an assertion is not an affirmative defense. Accordingly, Plaintiff's Motion is GRANTED as to the eleventh affirmative defense, and that defense is STRICKEN from Defendants' Answer.
In the twelfth affirmative defense, Defendants assert that they will seek attorneys' fees and costs if they prevail in this action. This is not an affirmative defense, as it will not defeat Plaintiff's claims. Accordingly, Plaintiff's Motion is GRANTED as to the twelfth affirmative defense, and that defense is STRICKEN from Defendants' Answer.
In the thirteenth and fourteenth affirmative defenses, Defendants "claim and plead all rights, defenses, privileges and immunities" granted to them under the United States Code and California statutes. Answer at 14 (emphasis added). Similarly, in the fifteenth affirmative defense, Defendants "claim and assert all defenses available to them pursuant to" Rule 12(b)(6). Id. (emphasis added). These affirmative defenses, however, do not give Plaintiff fair notice of any specific defense. Accordingly, Plaintiff's Motion is GRANTED as to the thirteenth, fourteenth, and fifteenth affirmative defenses, and those defenses are STRICKEN from Defendants' Answer.
In the sixteenth affirmative defense, Defendants allege that Plaintiff's contributory negligence caused and contributed to his damages. "Contributory negligence" is included in the non-exhaustive list of affirmative defenses in Rule 8(c)(1), and Defendants' Answer sufficiently puts Plaintiff on fair notice of the defense. Accordingly, Plaintiff's Motion is DENIED as to the sixteenth affirmative defense.
In the seventeenth affirmative defense, Defendants appear to again assert qualified immunity. See Answer at 14 ("the actions and conduct of [D]efendants were made in good faith without malice . . . ."). Again, qualified immunity is an affirmative defense, and Defendants have provided Plaintiff with fair notice of the defense. Accordingly, Plaintiff's Motion is DENIED as to the seventeenth affirmative defense.
In the eighteenth affirmative defense, Defendants argue that any cause of action against Defendant Poindexter or any other governmental official acting in his or her official capacity, is barred under Kentucky v. Graham, 473 U.S. 159 (1985). In Graham, the United States Supreme Court held that an official capacity suit could not have been maintained against a defendant state police commissioner because of Eleventh Amendment immunity. 473 U.S. at 169. To the extent that Defendants are asserting immunity under the Eleventh Amendment, the Answer sufficiently puts Defendants on notice of that defense. Accordingly, Plaintiff's Motion is DENIED as to the eighteenth affirmative defense.
In the nineteenth affirmative defense, Defendants "reserve the right to amend this answer and allege further defenses . . . ." Answer at 15. Defendants need not "reserve" that right, see Federal Rule of Civil Procedure 15(a)(2), and their attempt to reserve it is not a valid affirmative defense. Accordingly, Plaintiff's Motion is GRANTED as to the nineteenth affirmative defense, and that defense is STRICKEN from Defendants' Answer.
CONCLUSION
Plaintiff's Motion to Strike Defendants' Affirmative Defenses (ECF No. 12) is GRANTED in part and DENIED in part. Plaintiff's Motion is GRANTED as to the first, second, fourth, eighth, ninth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and nineteenth affirmative defenses. Accordingly, those affirmative defenses are STRICKEN from Defendants' Answer without prejudice. Plaintiff's Motion is DENIED as to the third, fifth, sixth, seventh, tenth, sixteenth, seventeenth, and eighteenth affirmative defenses in Defendants' Answer (ECF No. 11).
IT IS SO ORDERED. Dated: July 17, 2015
/s/_________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT