United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge.
employment case, plaintiff David Jostad asserts the following
claims against his former employer May Trucking Company: age
discrimination under federal and state law; a state-law wage
and hour claim under ORS 652.140 and ORS 652.150; and a
common law claim for promissory estoppel. Defendant filed its
Answer on February 25, 2019. Shortly thereafter, plaintiff
communicated with defendant regarding plaintiffs objections
to eleven of defendant's affirmative defenses.
Ultimately, defendant filed an Amended Answer on April 2,
2019. Plaintiff now moves to strike defendant's Second,
Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and
Twelfth affirmative defenses. For the following reasons,
plaintiffs Motion to Strike (doc. 18) is DENIED.
answer must "affirmatively state any avoidance or
affirmative defense." Fed.R.Civ.P. 8(c)(1). Such
defenses must be stated "in short and plain terms."
Fed.R.Civ.P. 8(b)(1)(a). A court may strike an affirmative
defense under Federal Rule of Procedure 12(f) if it presents
an "insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." Fed.R.Civ.P. 12(f).
In considering a motion to strike, courts view the pleadings
in the light most favorable to the non-moving party. City
of Tillamook Oregon v. Kennedy Jenks Consultants, Inc.,
No. 3:18-cv-02054-BR, 2019 WL 1639930, at *3 (D. Or. Apr. 16,
2019). The disposition of a motion to strike is within the
discretion of the district court. See Fed. Sav. &
Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th
purpose of a Rule 12(f) motion is to avoid spending time and
money litigating spurious issues. Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).
"Motions to strike are disfavored and infrequently
granted." Legal Aid Servs. of Oregon v. Legal Servs.
Corp., 561 F.Supp.2d 1187, 1189 (D. Or. 2008); see
also Capella Photonics, Inc. v. Cisco Sys., Inc., 77
F.Supp.3d 850, 858 (N.D. Cal. 2014) ("Motions to strike
are regarded with disfavor because of the limited importance
of pleadings in federal practice and because they are often
used solely to delay proceedings." (quotation marks and
affirmative defense may be insufficient as a matter of
pleading or as a matter of law. Polk v. Legal Recovery
Law Offices, 291 F.R.D. 485, 488 (S.D. Cal. 2013).
'"The key to determining the sufficiency of pleading
an affirmative defense is whether it gives plaintiff fair
notice of the defense.'" Simmons v. Navajo
Cty., 609 F.3d 1011, 1023 (9th Cir. 2010) (quoting
Wyshak v. City Nat'l Bank, 607 F.2d 824, 827
(9th Cir. 1979)). "[T]he 'fair notice' required
by the pleadings standards only requires describing the
defense in 'general terms."' Kohler v. Flava
Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015)
(quoting 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1274 (3d ed.
1998)). An affirmative defense is legally
insufficient only if it clearly lacks merit "under any
set of facts the defendant might allege." Polk,
291 F.R.D. at 489 (citation and quotation marks omitted).
argues that (1) defendant's Second and Fifth affirmative
defenses are factually insufficient; (2) defendant's
Fourth and Sixth affirmative defenses are factually and
legally insufficient; and (3) defendant's Eighth, Ninth,
Tenth, Eleventh, and Twelfth affirmative defenses are
negative defenses that should be stricken or more accurately
identified as negative defenses.
argues that defendant's Second (Estoppel), Fourth
(Exhaustion of Internal Remedies), Fifth (Waiver), and Sixth
(Unclean Hands) affirmative defenses are factually
insufficient. Fair notice generally requires that the
defendant state the nature and grounds for the affirmative
defense. McDonald v. Alayan Alayan, No.
3:15-cv-02426-MO, 2016 WL 2841206, at * 3 (D. Or. May 13,
2016). Viewing the pleadings in the light most favorable to
defendant, the Court finds that defendant's allegations
state the nature and grounds of these affirmative defenses.
also argues that defendant's Fourth (Exhaustion of
Internal Remedies) and Sixth (Unclean Hands) affirmative
defenses are legally insufficient. Plaintiff contends that
defendant's Exhaustion defense is legally insufficient
because defendant failed to show that plaintiff was legally
required to pursue internal remedies before suing. Plaintiff
contends that defendant's Unclean Hands defense is
legally insufficient because plaintiffs failure to provide a
discrimination complaint to defendant before suing cannot
constitute "bad conduct" that supports the defense.
argument shows that these defenses "clearly lack merit
under any set of facts the defendant might allege."
Polk, 291 F.R.D. at 489 (quotation marks omitted).
Plaintiffs first argument is factual, rather than legal, and
in his second argument plaintiff did not cite authority
supporting his proposition that a person's failure to
make an internal discrimination complaint before suing is not
"bad conduct" as a matter of law.
these are issues on the merits and not appropriate for a Rule
12(f) motion to strike. Whittlestone, 618 F.3d at
973 . Instead, these are matters more appropriately reserved
for another day. Plaintiff can obtain the factual detail he
seeks through common discovery practices and will be able to
argue why these defenses are baseless at the summary judgment
phase of litigation or trial, if defendant chooses to pursue
plaintiff asserts, and defendant does not dispute, that
defendant's Eighth, Ninth, Tenth, Eleventh, and Twelfth
affirmative defenses are "negative defenses," which
negate an element of, or asserts a defect in, a plaintiffs
prima facie case. Zivkovic v. Southern California Edison
Co., 302 F.3d 1080, 1088 (9th Cir. 2002). Plaintiff
argues that the Court should strike these defenses as
redundant or, alternatively, strike the word
"Affirmative" from these defenses.
this Court has discretion to strike a negative defense, the
Court declines to do so because, "at this stage in the
litigation, striking negative defenses would do little more
than tidy up the pleadings." McBurney v. Lowe's
Home Centers, LLC, No. 1:13-cv-00540-ELJ-CWD, 2014 WL
2993087, at *3 (D. Idaho Jul. 2, 2014). If the Court granted
plaintiffs motion with respect to these defenses, it would
not streamline the proceedings in any way. Defendant would
have to file yet another amended answer that, at most, merely
omits the five negative defenses. Yet, plaintiff would still
have the burden of proving his prima facie case, and
defendant could still argue that plaintiff does not ...