United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
YIM YOU, UNITED STATES MAGISTRATE JUDGE
the Estate of Marjory Gail Thomas Osborn-Vincent (“the
Estate”), moves to dismiss or strike defendants'
counterclaim for attorney's fees and moves to strike all
of defendants' affirmative defenses. ECF #96. Defendants
Ameriprise Financial Services, Inc. (“AFSI”) and
RiverSource Life Insurance Company
“defendants”) oppose the motions. For the reasons
set forth below, the motion to dismiss or strike
defendants' counterclaim for attorney's fees should
be denied and the motion to strike defendants'
affirmative defenses should be granted in part and denied in
Motion to Dismiss or Strike Counterclaim for Attorney's
counterclaim reads: “To the extent that plaintiff's
claims against defendants are deemed meritless or lack an
objectively reasonable basis, defendants seek attorneys'
fees pursuant to ORS 20.105 and this Court's inherent
equitable power to award fees due to the lack of objectively
reasonable basis for the claims.” Ans. ¶ 63, ECF
#90. Plaintiff moves to dismiss this counterclaim under FRCP
12(b)(1) for lack for subject matter jurisdiction and under
FRCP 12(b)(6) for failure to state a claim. Plaintiff also
moves to strike the counterclaim under FRCP 12(f) as
immaterial or insufficient. However, the court need not reach
any of the parties' arguments to resolve these motions.
federal court sitting in diversity must apply the substantive
law of the state in which it sits. Harmsen v. Smith,
693 F.2d 932, 946 (9th Cir. 1982). Attorney-fee awards in
federal actions brought under state law are a substantive
matter to which state law applies. Rodriguez v. Cty. of
Los Angeles, 891 F.3d 776, 809 (9th Cir. 2018); In
re Larry's Apartment, L.L.C., 249 F.3d 832, 838 (9th
Cir. 2001) (“a federal court sitting in diversity
applies state law in deciding whether to allow attorney's
fees when those fees are connected to the substance of the
20.105(1) requires the court to award reasonable
attorney's fees to the prevailing party if it finds there
was no objectively reasonable basis for asserting a
claim. The Oregon Rules of Civil Procedure
require a party seeking attorney's fees under ORS 20.105
to allege the basis for such an award in a pleading. ORCP 68
C(2)(a). The Federal Rules of Civil Procedure, which govern
this proceeding, contain no such requirement. “In
contrast to Or. R. Civ. P. 68C(2)(a), the Federal Rules do
not require a party specifically to plead entitlement to
attorneys' fees.” Principal Life Ins. Co. v.
Robinson, No. CV 00-1345-BR, 2003 WL 27383315, at *1 (D.
Or. Mar. 21, 2003).
nothing in the Federal Rules prohibits pleading a request for
attorney's fees. Thus, the question is whether
plaintiff's superfluous counterclaim should stand.
this exact issue on two separate occasions, District Judge
Ann Aiken declined to grant a plaintiff's motion to
dismiss a counterclaim for attorney's fees, finding the
“issue to be of semantics rather than substance.”
See Amort v. NWFF, Inc., No.
6:11-CV-6396-AA, 2012 WL 3756330, at *4 (D. Or. Aug. 27,
2012) (declining to dismiss counterclaim for attorney's
fees); Silliman v. Hawes Fin. Grp., Inc., No.
6:15-CV-00285-AA, 2015 WL 5056353, at *4 (D. Or. Aug. 26,
2015) (same). “Regardless of whether pled as a remedy
or independent claim, neither party is entitled to attorney
fees without first prevailing and then filing a separate
motion.” Silliman, 2015 WL 5056353, at *4
(citing Romani v. N.W. Tr. Servs., Inc., 3:11-cv-
00382-PA, 2014 WL 1072698, *1 (D. Or. Mar. 17, 2014));
see alsoFRCP 54(d)(2) (a “claim for
attorney's fees . . . must be made by motion unless the
substantive law requires those fees to be proved at trial as
an element of damages”). “As such,
defendants' fee-related claims merely furnish notice that
they will seek recovery of fees if they prevail [and]
establish that plaintiffs' state law claims are
frivolous.” Id. (citing Amort, 2012
WL 3756330, at *4).
same analysis applies in this case. Irrespective of whether
defendants have filed a “counterclaim” for
attorney's fees, they cannot obtain them without first
prevailing on a motion under FRCP 54(d)(2). At most, the
counterclaim serves as notice of defendants' intention to
seek attorney's fees. All of the parties' arguments
to the contrary are inapposite, and plaintiff's motions
to dismiss or strike defendants' counterclaim for
attorney's fees therefore should be denied.
Motion to Strike Defendants' Affirmative Defenses Under
moves to strike all ten of defendants' affirmative
defenses pursuant to Rule 12(f). Each defense is addressed
individually below, after the applicable law is discussed.
Rule of Civil Procedure 12(f) provides that “[t]he
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” The decision to grant or deny a Rule 12(f)
motion to strike is within the court's discretion.
Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963
(9th Cir. 2018).
matter is redundant if it is superfluous and can be omitted
without a loss of meaning. See Wilkerson v.
Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005) (noting
that a redundant matter is one that constitutes
“needless repetition”). A matter is immaterial if
it “has no essential or important relationship to the
claim for relief or the defenses being plead.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
974 (9th Cir. 2010) (quoting Fantasy, Inc. v.
Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),
rev'd on other grounds, 510 U.S. 517 (1994)). A
matter is impertinent if it “consists of statements
that do not pertain, and are not necessary, to the issues in
question.” Id. (quoting Fantasy, 984
F.2d at 1527). A matter is scandalous if it
“unnecessarily reflects on the moral character of an
individual or states anything in repulsive language that
detracts from the dignity of the court.” 2 Moore's
Federal Practice § 12.37 (Bender 3d ed.).
Rule of Civil Procedure 8(c)(1) requires that “[i]n
responding to a pleading, a party must affirmatively state
any avoidance or affirmative defense.” In Wyshak v.
City Nat'l Bank, the Ninth Circuit held that
“[t]he key to determining the sufficiency of pleading
an affirmative defense is whether it gives plaintiff fair
notice of the defense.” 607 F.2d 824, 827 (9th Cir.
the Supreme Court's decisions in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), courts across the country
are split on whether the pleading standard articulated in
those cases applies to affirmative defenses. See
Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. § 1274 (3d ed. 2018) (citing cases and summarizing
different holdings). Since Twombly and
Iqbal were decided, the Ninth Circuit issued
Kohler v. Flava Enterprises, Inc., in which it held
that “the ‘fair notice' required by the
pleading standards only requires describing [affirmative]
defense[s] in ‘general terms.'” 779 F.3d
1016, 1019 (9th Cir. 2015) (quoting Wright & Miller, Fed.
Prac. & Proc. § 1274 (3d ed. 1998)). Subsequent to
its decision in Kohler, the Ninth Circuit has
applied the Wyshak fair-notice test in two other
cases, Simmons v. Navajo Cty., Ariz., 609 F.3d 1011,
1023 (9th Cir. 2010), and Schutte & Koerting, Inc. v.
Swett & Crawford, 298 Fed.Appx. 613, 615 (9th Cir.
2008) (cited pursuant to Ninth Circuit Rule 36-3). Some
courts have concluded this signifies that the Wyshak
fair-notice standard still applies to affirmative
defenses. Other courts have concluded that because
the Ninth Circuit has not expressly sanctioned a more lenient
pleading standard, Twombly and Iqbal
in this district are also split on the issue. Some cases hold
that the Wyshak fair-notice standard remains
applicable to affirmative defenses:
McDonald v. Alayan, No. 3:15-CV-02426-MO, 2016 WL
2841206, at *2-*3 (D. Or. May 13, 2016) (finding that
“‘fair notice' is a different, less stringent
standard than the factual plausibility standard articulated
in Twombly and Iqbal” and that
“the Ninth Circuit has continued to recognize,
unchanged, the ‘fair notice' standard of
affirmative defense pleading”) (citing
Simmons, 609 F.3d at 1023; Schutte, 298
Fed.Appx. at 615).
Fathers & Daughters Nevada, LLC v. Moaliitele,
No. 3:16-CV-926-SI, 2016 WL 7638187, at *3 (D. Or. Dec. 19,
2016) (finding that Rule 8(c)(1) requires a party simply to
“affirmatively state any . . . affirmative defense,
” and that “[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”).
Adidas Am., Inc. v. TRB Acquisitions LLC, No.
3:15-CV-2113-SI, 2017 WL 337983, at *3 (D. Or. Jan. 23, 2017)
(recognizing that “even after the Supreme Court issued
its decisions in Iqbal and Twombly, the
Ninth Circuit continued to hold that affirmative defenses
need only provide “fair notice” and be alleged
“in general terms”) (citing Kohler and
Unigestion Holding, S.A. v. UPM Tech., Inc., 305
F.Supp.3d 1134, 1140 (D. Or. 2018) (citing Kohler,
Simmons, and Wyshak, and applying the fair
Fed. Trade Comm'n v. Adept Mgmt., Inc., No.
1:16-CV-00720-CL, 2017 WL 1055959, at *1 (D. Or. Mar. 20,
2017) (applying “less stringent” fair notice
Trustmark Ins. Co. v. C & K Market, Inc., No.
CV-10-465-MO, 2011 WL 587574 (D. Or. Feb. 10, 2011) (holding
the court remains bound by Ninth Circuit precedent until
Wyshak is overruled).
Jane Doe ex rel. J.M. v. Phoenix-Talent Sch. Dist. No.
4, No. CIV. 10-3119-CL, 2011 WL 704877, at *2 (D. Or.
Feb. 18, 2011) (declining to apply heightened standard,
noting that the Ninth Circuit has not held that
Twombly and Iqbal govern the pleading
standard for affirmative defenses).
cases hold that the heightened pleading standard under
Twombly and Iqbal applies:
Nyberg v. Portfolio Recovery Assocs., LLC, No.
3:15-CV-01175-PK, 2016 WL 3176585, at *2 (D. Or. June 2,
2016) (holding the Twombly and Iqbal
pleading standard applies to affirmative defenses).
Gessele v. Jack in the Box, Inc., No.
3:10-CV-960-ST, 2011 WL 3881039, at *2 (D. Or. Sept 2, 2011)
Peterson v. Acumed, LLC, No. CV-10-586-HU, 2010 WL
5158542, at *3 (D. Or. Dec. 14, 2010) (same).
Tannerite Sports, LLC v. Jerent Enterprises, LLC,
No. 6:15-CV-00180-AA, 2016 WL 1737740, at *13 (D. Or. May 2,
2016) (applying Twombly/Iqbal standard ...