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finding the "fair notice" standard satisfied where the pleading described the condition that allegedly was not satisfied
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Case No. 2:12-cv-00500-JHN-SPx
04-30-2012
Chris Kohler v. Big 5 Corp. dba Big 5 Sporting Goods #185
The Honorable JACQUELINE H. NGUYEN
CIVIL MINUTES—GENERAL Present: Alicia Mamer
Deputy Clerk Not Reported
Court Reporter/Recorder N/A
Tape No. Attorneys Present for Plaintiffs:
Not Present Attorneys Present for Defendants:
Not Present Proceedings: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE UNDER RULE 12(f) (In Chambers) The matter is before the Court on Plaintiff Chris Kohler's ("Plaintiff") Motion to Strike Under Rule 12(f) ("Motion"), filed on March 6, 2012. (Docket no. 7.) The Court previously deemed the matter appropriate for decision without oral argument and took the matter under submission. See Fed. R. Civ. P. 78(b); Local Rule 7-15. The Court has read and considered the pleadings filed in connection with the Motion. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion.
I. BACKGROUND On January 19, 2012, Plaintiff Chris Kohler ("Plaintiff") initiated this action against Defendant Big 5 Corp. dba Big 5 Sporting Goods #185 ("Defendant" or "Big 5"). (Docket no. 1.) Plaintiff, who is "physically disabled" and uses a wheelchair, claims that Defendant's Murrieta, California store ("the store") does not comply with certain requirements set forth in the Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C. §§12101, et seq. (Compl. ¶¶ 1-8.) Specifically, Plaintiff asserts five ADA causes of action: (1) denial of "full and equal" enjoyment and use of the store, 42 U.S.C. § 12182(a); (2) failure to remove architectural barriers in an existing facility, 42 U.S.C. § 12182(b)(2)(A)(iv); (3) failure to design and construct an accessible facility, 42 U.S.C. § 12183(a)(1); (4) failure to make an altered facility accessible, 42 U.S.C. § 12183(a)(2); and (5) failure to modify existing policies and procedures, 42 U.S.C. § 12182(b)(2)(A)(ii). In addition, Plaintiff asserts derivative state claims under California's Disabled Persons Act, Cal. Civ. Code §§ 54, et seq., the Unruh Civil Rights Act, Cal. Civ. Code §§51, et seq., and various provision of California's Health & Safety Code. On February 16, 2012, Defendant answered Plaintiff's Complaint, denying Plaintiff's factual allegations and raising the following eleven affirmative defenses: (1) failure to state a claim; (2) no deterrence; (3) reasonable accommodations; (4) contributory negligence; (5) undue burden; (6) "dimensional tolerances"; (7) equivalent facilitation; (8) failure to request accommodations; (9) not readily achievable; (10) no standing; and (11) direct threat to health and safety of others. (Docket no. 5.) On March 6, 2012, Plaintiff filed the instant Motion to Strike all of Defendant's affirmative defenses. (Docket no. 7.) Defendant filed an Opposition, (docket no. 17), and Plaintiff filed a Reply. (Docket no. 19.)
II. LEGAL STANDARD A court may strike from any pleading "redundant, immaterial, impertinent or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). A matter is "redundant" if it is "duplicative" or "identical." Atl. Richfield Co. v. Ramirez, No. 98-56372, 1999 U.S. App. LEXIS 8669, at *5 (9th Cir. May 4, 1999) (affirming the district court's decision to strike duplicative counterclaims); Munie v. Stag Brewery, Div. of G. Heileman Brewing Co., 131 F.R.D. 559, 559-60 (S.D. Ill. 1989) (striking two nearly identical counts in a complaint). Matters are "immaterial" if they have no essential or important relationship to the claim for relief or defense. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). "Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question." Id. Lastly, an allegation is "scandalous" if it is "defamatory" (Gitto v. Worcester Telegram & Gazette Corp. (In re Gitto Gloval Corp.), 422 F.3d 1, 12 (1st Cir. 2005)) or otherwise "unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court" (Cobell v. Norton, 224 F.R.D. 1, 5 (D.D.C. 2004)). "The key to determining the sufficiency of pleading an affirmative defense is whether it gives the plaintiff fair notice of the defense." Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (citations omitted). "Fair notice generally requires that the defendant state the nature and grounds for the affirmative defense. Kohler v. Islands Restaurants, LP, No. 11-2260, 2012 WL 524086, at *2 (S.D. Cal. Feb. 16, 2012) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). "It does not, however, require a detailed statement of facts." Id. (citing Conley, 355 U.S. at 47-48). "To strike an affirmative defense, "the moving party must convince the court 'that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed.'" SEC v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995) (citations omitted). Courts generally disfavor and rarely grant motions to strike, since they impose a drastic and extreme remedy. Id.; Stanbury Law Firm, P.A. v. Internal Revenue Serv., 221 F.3d 1059, 1063 (8th Cir. 2000) (stating that motions to strike are viewed with disfavor and infrequently granted). "If a court strikes an affirmative defense, leave to amend should be freely granted, provided there is no prejudice to the moving party." Kohler v. Bed Bath & Beyond, LLC, 2012 WL 424377, at *1 (C.D. Cal. Feb. 8, 2012) (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979)).
III. DISCUSSION
A. Pleading Sufficiency As a preliminary matter, Plaintiff requests that the Court strike all eleven of Defendant's affirmative defenses on the basis that none of them set forth sufficient factual matter. (Mot. at 4.) The Ninth Circuit has yet to address whether the pleading standard set forth in Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal should apply to affirmative defenses, and district courts within the circuit are split on the issue. See 556 U.S. 662, 129 S. Ct. 1937 (2009); 550 U.S. 544, 127 S. Ct. 1955 (2007). Plaintiff cites to several district court decisions applying the Twombly/Iqbal pleading standards to affirmative defenses. (See Mot. at 4 (citing Barnes v. At&T Pension Benefit, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010)); Reply at 2 (citing Qarbon.com, Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049-50 (N.D. Cal. 2004); Solis v. Zenith Capital, LLC, No. 08-4854, 2009 U.S. Dist. LEXIS 43350, at *8-19 (N.D. Cal. May 8, 2009)).) However, other recent cases have held that Twombly's plausibility standard is inapplicable to affirmative defenses. See, e.g., Trustmark Ins. Co. v. C & K Mkt., Inc., No. 10-465, 2011 WL 587574, at *1 (D. Or. Feb. 10, 2011); J & J Sports Prod., Inc., v. Scace, 2011 WL 2132723 at *1-2 (S.D. Cal. May 27, 2011); Kohler v. Islands Restaurants, 2012 WL 524086, at *2. Given the dearth of binding authority on this issue, the Court declines to extend the Twombly/Iqbal pleading standards to affirmative defenses in this case. In Kohler v. Islands Restaurants, the district court concluded that Twombly and Iqbal are limited to pleadings covered by Fed. R. Civ. P. 8(a)(2), which requires that a party "show[] that it is entitled to relief." 2012 WL 524086, at *4 (citation omitted). By contrast, "[s]tating an affirmative defense under Rule 8(c) . . . does not require the pleader to 'show' entitlement to its defense," but merely "requires a responding party to 'affirmatively state' its affirmative defenses." Id. (emphasis omitted) (citation omitted). Consequently, "[a]pplying the same standard of pleading to claims and affirmative defenses, despite this clear distinction in the rules' language, would run counter to the Supreme Court's warning in Twombly that legislative action, not 'judicial interpretation,' is necessary to 'broaden the scope' of specific federal pleading standards." Id. (quoting Twombly, 550 U.S. at 569, n. 14). The district court also noted the "distinction between the time plaintiff has to compose a complaint versus the time a defendant has to answer it," making it "reasonable to impose stricter pleading requirements on a plaintiff . . . than a defendant who is only given [21] days to respond to a complaint and assert its affirmative defenses." Id. (quoting Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-2870, 2010 WL 865380, at *2 (D. Colo. Mar. 8, 2010)). The Court finds this reasoning persuasive, and will therefore determine the sufficiency of Defendant's affirmative defenses under the "fair notice" standard. See Wyshack, 607 F. 2d at 827 (citation omitted).
B. First Affirmative Defense—Failure to State a Claim Defendant's First Affirmative Defense, failure to state a claim, is immaterial "because it is not an affirmative defense but rather a failure of Plaintiff's prima facie case." Kohler v. Bed Bath & Beyond of Cal., LLC, No. 11-4451, 2012 WL 424377 (C.D. Cal. Feb. 8, 2012) (citing Barnes, 718 F. Supp. 2d at 1174)); but see Kohler v. Islands Restaurants, 2012 WL 524086, at *6 (holding that "simple mislabeling . . . is not grounds for striking . . . [Defendant's] defenses," as "[n]egative defenses may also be raised in [a defendant's] answer") (citing Fed. R. Civ. P. 8(b)). Assertion of this purported defense is unnecessary and, therefore, the Court STRIKES Defendant's First Affirmative Defense WITH PREJUDICE.
C. Second Affirmative Defense—No Deterrence Plaintiff argues that Defendant's Second Affirmative Defense, that Plaintiff was not deterred from visiting Big 5, is not an affirmative defense, but rather, constitutes a rebuttal against evidence presented by Plaintiff. (Mot. at 5) (citing Zivkovic v. So. Cal. Edison, Co., 302 F.3d 1080, 1088 (9th Cir. 2002)).) However, a claim of no deterrence is closely related to an argument that a plaintiff lacks standing to bring suit under the ADA. See, e.g., Chapman v. Pier 1 Imports, 631 F.3d 939, 959-60 (9th Cir. 2011). Accordingly, for the same reason set forth, infra section III(K), the Court finds this affirmative defense may properly be asserted by Defendant. Therefore, the Court DENIES Plaintiff's Motion as to Defendant's Second Affirmative Defense.
D. Third Affirmative Defense—Reasonable Accommodations Plaintiff points out that Defendant's Third Affirmative Defense, reasonable accommodations, is usually raised in the employment discrimination context under Title I of the ADA. (Mot. at 6 (citing Zivkovic v. So. Cal. Edison, Co., 302 F.3d 1080, 1088 (9th Cir. 2002)).) Because the Court cannot discern any relevant statutory basis for this defense, it STRIKES Defendant's Third Affirmative Defense WITHOUT PREJUDICE. Defendant may amend its answer to clarify the legal basis for this defense and provide Plaintiff with fair notice of the nature of Defendant's claim.
E. Fourth Affirmative Defense—Contributory Negligence Defendant's Fourth Affirmative Defense, negligence of third parties, fails as a matter of law under the ADA. See Kohler v. Bed Bath & Beyond, 2012 WL 424377, at *1 ("[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" (quoting United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092, 1118 (C.D. Cal. 2002) (rev'd on other grounds)). Therefore, the Court STRIKES Defendant's Fourth Affirmative Defense WITH PREJUDICE.
F. Fifth Affirmative Defense—Undue Burden Defendant's Fifth Affirmative Defense alleges that, to the extent architectural barriers do exist, the removal of such barriers would constitute an undue burden on Defendant. However, undue burden only operates as a defense to a claim under ADA § 302(b)(2)(A)(iii), 42 U.S.C. § 12182(b)(2)(A)(iii), and no such claim appears in the Complaint. See Kohler v. Islands Restaurant, 2012 WL 524086, at *9 (accepting Plaintiff's claim that the complaint did not include a claim under ADA § 302(b)(2)(A)(iii) and striking Defendant's undue burden defense without prejudice). After reviewing the Complaint, the Court finds that Defendant's undue burden defense is irrelevant to the instant matter. Therefore, the Court STRIKES Defendant's Fifth Affirmative Defense WITHOUT PREJUDICE. In the event that Plaintiff seeks to amend the Complaint to assert a claim under ADA § 302(b)(2)(A)(iii), Defendant may seek leave to reassert this affirmative defense.
G. Sixth Affirmative Defense—"Dimensional Tolerances" Defendant's Sixth Affirmative Defense asserts that the features identified in Plaintiff's Complaint generally comply with the law and are within "dimensional tolerances." Plaintiff argues that this defense necessarily fails because of Ninth Circuit authority rejecting the premise that de minimis ADAAG violations may be excepted from liability under the ADA. (Mot. at 7-8 (citing Chapman v. Pier 1 Imports, 631 F.3d 939, 945-46 (9th Cir. 2011); Molski v. M.J. Cable, Inc., 481 F.3d 724, 732, n.5 (9th Cir. 2007); Long v. Coast Resorts, INc., 267 F.3d 918, 923 (9th Cir. 2001)).) However, the Ninth Circuit has not categorically rejected "dimensional tolerances" as an affirmative defense under certain circumstances and courts within this circuit have declined to strike affirmative defenses based on a theory of de minimis violation. See, e.g., Kohler v. Islands Restaurants, 2012 WL 524086 at *10; Kohler v. Bed Bath & Beyond, 2012 WL 424377 at *3; Independent Living Resources v. Or. Arena Corp., 1 F. Supp. 2d 1124, 1135 (D. Or. Mar. 26, 1998). The Court finds that Defendant's "dimensional tolerances" affirmative defense is properly pled and recognized as a defense. Therefore, the Court DENIES Plaintiff's Motion to Strike as to Defendant's Sixth Affirmative Defense.
H. Seventh Affirmative Defense—Equivalent Facilitation The Court finds that Defendant's Seventh Affirmative Defense, equivalent facilitation, is sufficiently pled and recognized as a proper defense under the ADA and California's Unruh Act. See ADAAG § 2.3; 28 C.F.R. § 36.402; Kohler v. Bed Bath & Beyond, 2012 WL 424377, at *2 (denying motion to strike equivalent facilitation defense). Plaintiff argues that Defendant must plead this defense with particularity under Fed. R. Civ. P. 9(c), as a denial of the existence of a condition precedent to Plaintiff's claim. (Mot. at 9.) However, Defendant has specifically stated the condition precedent it claims has not been satisfied here—the absence of equivalent facilitation at the Big 5 store. See Smith v. Wal-Mart Stores, No. 06-2069, 2006 WL 2711468, at *7 (N.D. Cal. Sept. 20, 2006) (explaining that "[w]hile the Ninth Circuit has not interpreted Rule 9(c)'s requirement that denial be pleaded 'specifically and with particularity,' the Seventh Circuit has interpreted this standard to hold that the pleading party must 'specifically allege' a particular condition precedent that has not been performed") (emphasis added). The Court finds Defendant's Seventh Affirmative Defense provides sufficient notice to Plaintiff of the defense to be asserted. Therefore, the Court DENIES Plaintiff's Motion as to Defendant's Seventh Affirmative Defense.
I. Eighth Affirmative Defense—Failure to request accommodations Plaintiff interprets Defendant's Eighth Affirmative Defense, failure to request reasonable accommodations or modifications, as a failure to provide notice, which is not a requirement under Title III of the ADA. (Mot. at 9 (citing 42 U.S.C. § 1288(a)(1); Botosan v. Paul McNally Realty, 216 F.3d 827, 831-32 (9th Cir. 2000)).) However, the defense might just as reasonably be construed as a claim that Plaintiff failed to mitigate damages. Given this ambiguity, the Court finds that the Eighth Affirmative Defense does not provide fair notice of the nature of Defendant's argument and therefore STRIKES the Eight Affirmative Defense WITHOUT PREJUDICE.
J. Ninth Affirmative Defense—Not Readily Achievable Defendant's Ninth Affirmative Defense, that removal of the alleged barriers is not readily achievable, is a recognized affirmative defense that may be relevant to this case. However, Defendant has not indicated the grounds upon which it relies in asserting this defense. Because 42 U.S.C. § 12181(9) provides a variety of factors to consider in determining whether removal is readily achievable, Defendant's simple assertion of the defense does not provide adequate notice to Plaintiff. See Kohler v. Islands Restaurant, 2012 WL 524086, at *7 ("Because there are several grounds upon which [Defendant] may be relying in this matter, the Court finds that its bare assertion of the defense provides inadequate notice to [Plaintiff]."). Accordingly, the Court STRIKES Defendant's Ninth Affirmative Defense WITHOUT PREJUDICE.
K. Tenth Affirmative Defense—No Standing Plaintiff argues that Defendant's Tenth Affirmative Defense, lack of standing, is not a true affirmative defense and must therefore be stricken. (Mot. at 11.) However, "[w]hile standing is an essential element of a plaintiff's claim, some courts have recognized it as an affirmative defense." Kohler v. Bed Bath & Beyond, 2012 WL 424377, at *3 (citing Solis v. Couturier, No. 08-2732, 2009 WL 3055207, at *1 (E.D. Cal. Sept. 17, 2009)). Therefore, the Court DENIES Plaintiff's Motion to Strike as to Defendant's Tenth Affirmative Defense.
L. Eleventh Affirmative Defense—Direct threat to health and safety Defendant's Eleventh Affirmative Defense, asserting that changes requested by Plaintiff will result in a direct threat to health and safety of others, is a recognized defense. 42 U.S.C. § 12182(b)(3). However, neither the Complaint nor the Answer provides any clue as to the nature of the health and safety concerns upon which this affirmative defense might be premised. Although Defendant is not required to provide detailed factual information at the pleading stage, it must at least identify the kind of safety risk at issue. Here, Defendant's Answer does not provide Plaintiff with fair notice of the defense to be asserted, and the Court cannot determine whether the defense is relevant to the instant action. Accordingly, the Court STRIKES Defendant's Eleventh Affirmative Defense WITHOUT PREJUDICE.
IV. CONCLUSION For the foregoing reasons, Plaintiff's Motion, (docket no. 7), is GRANTED IN PART AND DENIED IN PART. The Court STRIKES Defendant's First and Fourth Affirmative Defenses WITH PREJUDICE. The Court STRIKES Defendant's Third, Fifth, Eighth, Ninth, and Eleventh Affirmative Defenses WITHOUT PREJUDICE. Defendant may file an amended answer as to these defenses by no later than May 21 , 2012 . The Court DENIES Plaintiff's Motion as to Defendant's Second, Sixth, Seventh, and Tenth Affirmative Defenses. IT IS SO ORDERED.
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Initials of Preparer AM