United States District Court, D. Oregon, Pendleton Division
OPINION & ORDER
PATRICIA SULLIVAN United States Magistrate Judge.
has sued his former employer alleging a common law wrongful
termination claim and three separate statutory claims under
Or. Rev. Stat. §§ 652.355, 659A.030(f), and
659A.199. Defendant filed an answer asserting an affirmative
defense that sought to preclude plaintiff's common law
claim. Plaintiff filed a Motion to Strike Affirmative Defense
within Answer to Complaint (doc. 14) under Rule 12(f). In
response, defendant filed its own Motion to Strike
Plaintiff's Motion to Strike (doc. 16).
12(f) provides, in relevant part, that a court may strike an
insufficient defense or a redundant, immaterial, impertinent,
or scandalous matter “on motion made by a party either
before responding to the pleading or, if a response is not
allowed, within 21 days after being served with the
pleading.” EEOC v. Fred Meyer Stores, Inc.,
954 F.Supp.2d 1104, 1112 (D. Or. 2013). Granting a motion to
strike is within the discretion of the district court.
FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex.
1993). Motions to strike are disfavored and should be granted
only if it “can be shown that no evidence in support of
the allegation would be admissible.” Pease &
Curren Ref., Inc. v. Spectrolab, Inc., 744 F.Supp. 945,
947 (C.D. Cal. 1990) (internal quotation omitted),
abrogated on other grounds, Stanton Rd. Assocs.
v. Lohrey Enters., 984 F.2d 1015 (9th Cir. 1993).
answer includes the following affirmative defense:
“Plaintiff fails to state a claim for common law
wrongful discharge based on the existence of an adequate
statutory remedy.” Def.'s Answer at 16 (doc. 12).
Plaintiff's motion argues that under Oregon case law, a
common law remedy should only be precluded when the
legislature's intent to preclude that remedy is clear and
when the statutory remedy is adequate. See Pl.s'
Br. at 6 (doc. 14) (“As set out by the Oregon Supreme
Court, this test for preclusion has two prongs: a finding of
an adequate statutory remedy, and a finding that the
legislature intended to abrogate the common-law
remedy.”). Thus, plaintiff argues that defendant's
affirmative defense should be stricken because, although
federal courts have held that Oregon's wrongful
termination statutes preclude bringing a similar common law
claim, that those cases are nonetheless based on a misreading
of relevant Oregon Supreme Court case law.
motion to strike argues that plaintiff's motion should be
stricken for two reasons. First, because plaintiff failed to
engage in a good-faith conferral with defendant before filing
the motion as required by LR 7-1. Second, because case law in
the District of Oregon has held that the statutory provisions
relied on by plaintiff provide a sufficient remedy to
preclude a similar common law wrongful termination remedy.
See Lindsey v. Clatskanie People's Util. Dist.,
140 F.Supp.3d 1077, 1096 (D. Or. 2015) (ORS § 659A.030
provides adequate statutory remedies and precludes plaintiffs
common law wrongful discharge claim); Wall v. Sentry
Ins., No. 3:14-CV-01887-SI, 2015 WL 350683, at *2-3 (D.
Or. 2015) (explaining the same); Luke v. Target
Corp., No. 3:18-CV-381-SI, 2018 WL 2144347, at *2 (D.
Or. 2018) (holding that “a common law wrongful
discharge claim provides the same remedies as a whistleblower
retaliation claim under Or. Rev. Stat. § 659A.199 and
that two claims cannot be pursued simultaneously when based
upon the same conduct”) (citing Tornabene v. Nw.
Permanente, P.C., 156 F.Supp.3d 1234, 1252 (D. Or.
December 28, 2015); Duran v. Window Products, Inc.,
2010 WL 6420572, at * 5 (D. Or. Dec. 22, 2010).
motion to strike will be granted at this time. As I explained
during the hearing held on June 26, 2019, a motion to strike
is not the proper vehicle for disagreeing with the merits of
an affirmative defense. If plaintiff disagrees with the
substance of an affirmative defense, he is free to raise the
issue later on in the litigation. Thus, plaintiff's
motion to strike is denied.
the LR 7-1 violation, defendant requests an order reimbursing
it for the reasonable fees and costs incurred by having to
file its own motion to strike and response to plaintiff's
motion. The Court has instructed the parties to engage in
adequate conferral under LR 7-1. Consultation must be done in
good faith, which means done with a view to resolving the
issue to not require the unnecessary motions and briefing.
However, plaintiff's behavior here does not warrant the
drastic remedy requested by defendant.
foregoing reasons, plaintiff's motion to strike (doc. 14)
is DENIED and defendant's motion to strike
plaintiff's motions (doc. 16) is DENIED AS
 The Court ordered defendant to file an
Amended Answer including a more complete articulation of its
affirmative defense within 10 days. The Amended Answer ...