DENISE PAGE HOOD, Chief District Judge.
Plaintiffs filed this cause of action on February 17, 2017, alleging that Defendants violated their procedural due process rights under the Fourteenth Amendment. Plaintiffs filed an Amended Complaint on March 8, 2017. In lieu of an Answer to the Amended Complaint, Defendants filed a motion to dismiss. On August 31, 2017, the Court granted Defendants' motion to dismiss because Plaintiffs were volunteer reserve police officers. The Sixth Circuit reversed and remanded the case to this Court, holding that Plaintiffs had a liberty interest for which they were entitled to a name-clearing hearing. The case was remanded to this Court on October 12, 2018.
On November 20, 2018, Defendants timely filed an Answer to the Amended Complaint with Affirmative Defenses. Dkt. No. 34. Plaintiffs promptly filed a Motion to Strike Defendants' Affirmative Defenses ("Motion to Strike"). Dkt. No. 35. Defendants filed a response to the Motion to Strike, to which Plaintiffs replied. For the reasons that follow, the Motion to Strike is granted in part and denied in part.
Plaintiffs brought this case after being "removed from their role[s] as reserve officer[s]" by the Defendants on January 10, 2017. Dkt. No. 7. Pg. ID 59. Plaintiffs' three-count Amended Complaint includes the following claims: (1) violation of Procedural Due Process rights under the Fourteenth Amendment for denial of a name clearing hearing against Defendants Joe Young, Sue Bossardet, and Robert Charles Davis; (2) violation of Procedural Due Process rights under the Fourteenth Amendment for denial of a name clearing hearing against Defendant Village of Oxford; and (3) Declaratory Relief against all Defendants.
As stated by the Sixth Circuit:
Meyers v. Village of Oxford, 739 F.App'x 336, 337-38 (6th Cir. 2018).
Federal 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." A motion to strike an affirmative defense is properly granted when "plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Operating Eng'rs Local 324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015). See also Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2nd Cir. 2003) (an affirmative defense is something specific — "a defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all allegations in the complaint are true.").
As another Eastern District of Michigan Judge recently stated, there are two viewpoints regarding the specificity required when asserting an affirmative defense. See Exclusively Cats Veterinary Hosp., P.C. v. Pharm. Credit Corp., No. 13-CV-14376, 2014 WL 4715532, at **2-3 (E.D. Mich. Sept. 22, 2014). In Exclusively Cats, the court reasoned:
Exclusively Cats, 2014 WL 4715532, at **2-3 (emphasis in original). For the same reasons espoused by the Exclusively Cats court, this Court is persuaded that it is most appropriate to apply the fair notice pleading standard when determining whether Defendants sufficiently pleaded their affirmative defenses.
Although there are some exceptions, it is generally understood that the failure to allege an affirmative defense in the first responsive pleading may result in a waiver of the defense. See Horton v. Potter, 369 F.3d 906, 911-12 (6th Cir. 2004). The purpose of such a general rule is to "give the opposing party notice of the affirmative defense and a chance to rebut it." Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir 1993). Thus, at the outset of a case, without the luxury of time or the benefit of discovery, defendants are required to plead all of their affirmative defenses or risk waiving those that are not pled along with the answer. See Paducah River Painting, Inc. v. McNational, Inc., 2011 WL 5525938, at *2 (W.D. Ky. Nov. 14, 2011); Lane v. Page, 272 F.R.D. 581, 596 (D.N.M. 2011) ("Plaintiffs can prepare their complaints over years, limited only by the statute of limitations, whereas defendants have only twenty-one days to file their answers."). Taking those considerations into account, the Court now turns to Plaintiffs' challenges to Defendants' affirmative defenses.
The Court first declines to adopt Plaintiffs' argument that all of Defendants' affirmative defenses should be stricken for failure to meet the Twombly standard. As stated above, the Court concludes that the fair notice pleading standard governs this case. The Court finds that each of Defendants' 26 affirmative defenses gives Plaintiffs fair notice of the defenses asserted by Defendants.
The Court next rejects Plaintiffs' assertion that Defendants' affirmative defenses 1, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 (1, 10, and 12-25) should be struck because they are not "affirmative defenses" at all. Plaintiffs claim that those "vaguely pled affirmative defenses" should be stricken as nothing more than claims that Plaintiffs have not "proved essential element(s) of a claim . . ." Dkt. No. 35, PgID 569. Plaintiffs rely on Johnson v. City of Saginaw, 2018 U.S. Dist. LEXIS 169236, at *9 (E.D. Mich. Aug. 30, 2018) (citations omitted) ("An assertion that Plaintiff has not proved essential elements of [a] claim is not an affirmative defense and should be stricken."). Plaintiffs do not otherwise offer any specific analysis with respect to how or why any of Defendants' affirmative defenses 1, 10, or 12-25 are deficient.
Rule 8(c) requires a defendant to affirmatively state in its answer "any avoidance or affirmative defense, including: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver." Contrary to Plaintiffs' suggestion, the Court concludes that the list of affirmative defenses in Rule 8(c) is not exhaustive. See, e.g., Sony/ATV Music Publishing LLC v. DJ Miller Music Distributors, Inc., 2011 WL 4729811, at *14 (M.D. Tenn. 2011); F.R.Civ.P. 8(c)(1) ("In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ..." (emphasis added)).
As Defendants are not limited to the avoidance and affirmative defenses identified in Rule 8(c) and Plaintiffs have not explained how any of Defendants' affirmative defenses 1, 10, and 12-25 are deficient, the Court DENIES Plaintiffs' request to strike affirmative defenses 1, 10, and 12-25.
Plaintiffs assert that Defendants' affirmative defenses 4, 5, 6, 7, 8, 9, and 11 lack any factual or legal basis. Defendants concede that affirmative defense 4 (statute of limitations) is not warranted at this time, and they have agreed to withdraw it. Accordingly, the Court will grant Plaintiffs' Motion to Strike as to affirmative defense 4.
Affirmative defense 5 seeks a set-off from any collateral sources. Plaintiffs contend that there are no known or pled collateral sources, so there is no legal or factual basis to make this affirmative defense. Affirmative defense 6 relies upon the "doctrines of laches, waiver, release, estoppel, and unclean hands." Plaintiffs argue there is no factual or legal basis to make this collective group of affirmative defenses.
Affirmative defense 7 is that Plaintiffs failed to join all necessary parties and claims. Plaintiffs assert that all necessary parties are present and that they have pleaded a valid plausible claim, such that there is no legal or factual basis to make this affirmative defense. Affirmative defense 8 is based on "governmental immunity," which Plaintiffs contend is a state-law tort defense. See Johnson, 2018 U.S. Dist. LEXIS 169236, at *9 (citation omitted). Plaintiffs represent that no state-law tort claims have been asserted, so the governmental immunity defense does not apply.
Affirmative defense 9 asserts qualified immunity. Plaintiffs argue that qualified immunity is only available for individual capacity claims, as "qualified immunity ... is unavailable to ... the official acting in his official capacity." Everson v. Leis, 556 F.3d 484, 501 fn.7 (6th Cir. 2009) (citing Hall v. Tollett, 128 F.3d 418, 430 (6th Cir. 1997)). As the Sixth Circuit affirmed dismissal of the individual capacity claims and remanded all official capacity claims in this case, see Meyers v. Village of Oxford, 739 F.App'x 336, 342 (6th Cir. 2018), Plaintiffs state that the qualified immunity defense is not applicable to Defendants.
In affirmative defense 11, Defendants claim that Plaintiffs have not exhausted administrative remedies and/or other post-deprivation procedures. Plaintiffs contend that exhaustion is not required for Section 1983 claims, Felder v. Casey, 487 U.S. 131, 147 (1988); Patsy v. Bd. of Regents for Florida, 457 U.S. 496, 500-501, 516 (1982); Monroe v. Pape, 365 U.S. 167, 183 (1971), and the exhaustion defense is not applicable.
Defendants counter that affirmative defenses 5-9 and 11 are properly pleaded because the positions raised in them: (a) are self-explanatory; (b) give Plaintiffs fair notice of Defendants' positions; and (c) no additional facts are necessary to sufficiently plead them.
The Court finds that Defendants have ignored the fact that no state law claims were filed in this case. As set forth above, Plaintiffs' three-count Amended Complaint includes the following claims: (1) violation of Procedural Due Process rights under the Fourteenth Amendment for denial of a name clearing hearing against Defendants Joe Young, Sue Bossardet, and Robert Charles Davis; (2) violation of Procedural Due Process rights under the Fourteenth Amendment for denial of a name clearing hearing against Defendant Village of Oxford; and (3) Declaratory Relief against all Defendants. None of these claims are based on state law, such that the governmental immunity defense relied upon by Defendants in affirmative defense 8 could apply, see Johnson, 2018 U.S. Dist. LEXIS 169236, at *9 (citation omitted); M.C.L. § 691.1407, and Defendants have not indicated that there is any other governmental immunity upon which they rely. The Court will grant Plaintiffs' Motion to Strike with respect to affirmative defense 8.
The Court next finds that Defendants ignore an undisputed fact in this case, a fact of which the Court can take judicial notice: the Sixth Circuit has dismissed all individual capacity claims against Defendants. See Meyers, 739 F.App'x at 342. As qualified immunity applies only with respect to claims for which a defendant may be personally liable, Everson, 556 F.3d at 501 n.7, qualified immunity is now an insufficient and immaterial defense to the remaining official capacity claims. Accordingly, the Court will grant Plaintiffs' Motion to Strike with respect to affirmative defense 8.
The Court is not persuaded that affirmative defenses 5-7 and 11 should be stricken. To the extent that Plaintiffs argue there is no factual basis for affirmative defenses 5-7 and 11, the Court declines Plaintiffs' argument. Plaintiffs had time to ascertain information before filing their Complaint and their Amended Complaint, but at this stage of the proceedings, discovery has not commenced. The facts relevant to affirmative defenses 5-7 and 11 are not known to Defendants, even if they may be known to Plaintiffs, so striking such defenses for lack of a factual basis is unwarranted. See, e.g., Paducah River Painting, 2011 WL 5525938, at *2. And, a motion to strike an affirmative defense is properly granted only when "plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Local 324 Health Plan, 783 F.3d at 1050. Plaintiffs' argument with respect to each affirmative defense is based on the existence or absence of certain facts. Plaintiffs do not show how any of affirmative defenses 5-7 or 11 would fail no matter what the facts are. Affirmative defenses 5-7 and 11 will not be stricken.
Accordingly, the Court GRANTS Plaintiffs' request to strike affirmative defenses 4, 7, and 8 and DENIES Plaintiffs' request to strike affirmative defenses 5-7 and 11.
Plaintiffs argue that affirmative defense 26 ("Defendants reserve the right to amend their Affirmative Defenses through trial") is improper because it subverts Rule 15, which requires a party to move for leave to amend if it should desire to amend its pleadings going forward. Defendants do not specifically address Plaintiffs argument regarding affirmative defense 26.
The Court concludes that Plaintiffs are correct. Affirmative defense 26 (a "reservation to assert other unnamed defenses in the future") does not give fair notice of the nature of the defense. See United States ex rel. Robinson-Hill v. Nurses' Registry and Home Health Corp., 2013 WL 1187000, at *3 (E.D. Ky. Mar. 20, 2013) (citing Lawrence, 182 F.App'x at 456). And, absent leave of the Court (or stipulation of the parties), Defendants will not be able to amend their affirmative defenses (or any other pleadings). See, e.g., Johnson, 2018 U.S. Dist. LEXIS 169236, at *10-11 (citing Paducah River Painting, 2011 WL 5525938, at *5). Accordingly, the Court GRANTS Plaintiffs' Motion to Strike with respect to affirmative defense 26.
Accordingly, and for the reasons stated above,
IT IS ORDERED that Plaintiffs' Motion to Strike Affirmative Defenses [Dkt. No. 35] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Defendants' Affirmative Defenses 4, 7, 8, and 26 are STRICKEN.
IT IS FURTHER ORDERED that Defendants' Affirmative Defenses 1-3, 5-6, and 9-25 shall remain.
IT IS ORDERED.
