GARLAND E. BURRELL, Jr., District Judge
Plaintiffs move under Federal Rule of Civil Procedure ("Rule") 12(f) for an order striking Defendant's twenty-one affirmative defenses. Plaintiffs argue "Defendant's affirmative defenses are insufficient, redundant, immaterial, or impertinent" since "each . . . affirmative defense[] fails to allege . . . facts and thus fails to put Plaintiffs on fair notice." (Pls.' Mot. 5:25-26, 6:11-12.) Alternatively, Plaintiffs argue Defendant's first, second, sixth through tenth, twelfth, thirteenth, and fifteenth through twenty-first defenses should be stricken since they are not affirmative defenses.
"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Motions to strike are disfavored and infrequently granted."
"The procedural sufficiency of a pleaded claim or defense in federal court is governed by the federal rules, even though the defense relied on may be a state defense."
The parties dispute, however, which pleading standard applies to affirmative defenses. Plaintiffs argue the heightened pleading standard enumerated in
"[T]he Ninth Circuit has yet to apply
Plaintiffs argue Defendant's first affirmative defense, in which Defendant alleges Plaintiffs failed to state a claim upon which relief may be granted, is not an affirmative defense. (Pls.' Mot. 6:14-22.) Defendant counters, arguing "Form 30, at paragraph 4, sets out the approved form for assertion of the affirmative defense of failure to state a claim." (Def.'s Opp'n 5:26-6:2.)
"[F]ailure to state a claim is not a proper affirmative defense but, rather, asserts a defect in the plaintiff's prima facie case."
Plaintiffs argue Defendant's second and third affirmative defenses, in which Defendant alleges lack of subject matter jurisdiction and the discretionary function exception to liability under the FTCA, should be stricken since Defendant fails to plead any facts which support them. (Pls.' Mot. 6:24-7:17.) Further, Plaintiffs argue lack of subject matter jurisdiction is not an affirmative defense.
In light of Defendant's response, Plaintiff's motion to strike Defendant's second affirmative defense is GRANTED since it is duplicative of Defendant's third affirmative defense. Further, it is evident that Defendant's third affirmative defense is involved in this case since Defendant's factual position concerning this defense was made known to Plaintiffs in Defendant's August 26, 2011 motion to dismiss. Therefore, this portion of the motion is disfavored and is DENIED.
Plaintiffs argue Defendant's fourth affirmative defense, in which Defendant alleges that Plaintiffs failed to exhaust administrative remedies, should be stricken since "[t]here is no theory offered or facts pled giving Plaintiffs notice of how they failed to exhaust their administrative remedies." (Pls.' Mot. 7:20-21.) Defendant opposes the motion, arguing as follows:
(Def.'s Opp'n 7:16-20.)
Further, Plaintiffs seek to have Defendant's eleventh affirmative defense stricken, in which Defendant alleges that Plaintiffs failed to mitigate damages, arguing that "Defendant fails to provide any facts giving Plaintiffs notice of how they failed to mitigate." (Pls.' Mot. 8:13-15.) Defendant counters that "merely naming [a] defense[] is sufficient to satisfy the fair notice standard." (Def.'s Opp'n 8:17-18.)
"In light of the disfavored nature of Rule 12(f) motions and the present inability of the court to determine whether the challenged allegations are `so unrelated to the plaintiff's claims as to be unworthy of any consideration as a defense and that their presence in the pleading throughout the proceeding will be prejudicial to the moving party,'" Defendant's motion to strike Plaintiffs' fourth and eleventh affirmative defenses is DENIED.
Plaintiffs also argue Defendant's fifth affirmative defense, in which Defendant alleges the doctrine of assumption of the risk, should be stricken since there are no facts or theories pled in support of this affirmative defense. (Pls.' Mot. 7:6-12.) Defendant rejoins, arguing "[a]ssumption of the risk is specifically enumerated as an affirmative defense which must be raised [under Rule 8(c)]. . . and is legally sufficient to put Plaintiffs on notice of the nature of the defense." (Def.'s Opp'n 7:4-6.)
"A defense of assumption of the risk applies to tort actions where the Plaintiff knowingly acted to engage in dangerous behavior."
However, "[a] key factor in determining whether the doctrine of primary assumption of the risk applies is the nature of the activity. The existence and scope of the applicable duty of care in a given case turns both on the nature of the activity involved and the role of defendant whose conduct is at issue."
Plaintiffs argue Defendant's sixth, seventh, eighth, and ninth affirmative defenses should be stricken since they are denials of elements of Plaintiffs' claims rather than affirmative defenses. (Pls.' Mot. 8:3-5.) Defendant rejoins, arguing "[t]hese defenses set forth principles of contributory negligence, which is specifically enumerated as an affirmative defense in [Rule] 8(c)." (Def.'s Opp'n 8:4-5.)
"Affirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny plaintiff's right to recover, even if the allegations of the complaint are true."
Since Defendant's sixth and seventh affirmative defenses, in which Defendant alleges that Defendant exercised ordinary care and diligence and that any injury to Plaintiffs was not proximately caused by Defendant's negligent conduct, are denials of allegations in Plaintiffs' complaint, Plaintiffs' motion to strike these defenses is GRANTED. However, Defendant's eighth and ninth affirmative defenses plead matters extraneous to plaintiff's prima facie case; therefore, Plaintiffs' motion to strike Defendant's eighth and ninth affirmative defenses is DENIED.
Plaintiffs argue Defendant's fourteenth affirmative defense, in which Defendant alleges that "Plaintiff's claims are subject to the limitations contained in any and all state laws that may govern this action[,]" is insufficiently pled. (Answer ¶ 44; Pls.' Mot. 9:4-12.) Defendant counters that "[a]t this stage of the litigation, it is unclear whether [Plaintiffs] are seeking to recover in this lawsuit for types of injuries or items of damages which may be the subject of a state limitations statute." (Def.'s Opp'n 9:12-14.)
However, "Defendant fails to plead any facts . . . regarding this defense, merely setting forth that the Action is barred by the applicable statutes of limitations."
Therefore, since Defendant's fourteenth affirmative defense is insufficient to provide Plaintiffs with fair notice of what is pled in this defense, Plaintiff's motion to strike this defense is GRANTED. However, since "Defendant may be able to allege additional facts to support this affirmative defense," Defendant is granted leave to amend.
Plaintiffs also seek to strike Defendant's tenth, twelfth, thirteenth, fifteenth, seventeenth, nineteenth, twentieth, and twenty-first affirmative defenses, arguing these defenses "simply seek to limit Plaintiff's damages[, and] a limitation of liability is not an affirmative defense." (Pls.' Mot. 8:21-27.) Defendant does not contend these are affirmative defenses in its opposition to the motion; rather, Defendant argues "denials that are improperly pled as defenses should not be stricken for [the] reason [Plaintiffs' assert] alone." (Def.'s Opp'n 9:1-2 (internal quotation marks and citation omitted).) Defendant also argues "in some cases, applicability of statutes limiting damages may require resolution of factual issues, and in those cases Plaintiffs may be prejudiced if defendant does not raise the issue prior to judgment."
However, denials "do not constitute . . . affirmative defense[s]."
Plaintiffs seek to strike Defendant's "reservation of rights" allegation, arguing that this is not a proper affirmative defense. (Pls.' Mot. 10:6-10.) Defendant counters that what it alleges as reservation of rights "has not been asserted as an affirmative defense." (Def.'s Opp'n 10:1-2.)
"An attempt to reserve affirmative defenses for a future date is not a proper affirmative defense in itself. Instead, if at some later date defendant[] seeks to add affirmative defenses, [it] must comply with [with the applicable amendment rule]."
For the stated reasons, Defendant's first, second, sixth, seventh, tenth, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, nineteenth, twentieth, and twenty-first affirmative defenses and Defendant's reservation of rights allegation are stricken. Further, Defendant has voluntarily withdrawn the sixteenth and eighteenth affirmative defenses.
Defendant is granted fourteen (14) days from the date on which this order is filed to file an amended answer addressing the deficiencies in its fourteenth affirmative defense.