Bonshahi v. Fedex Corporation et al
Filing
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ORDER Signed by Judge Thelton E. Henderson denying re 32 Request for continuance and granting re 14 , re 22 Motions to Strike Affirmative Defenses as to Defendants FedEx Corporation and FedEx Office and Print. (tehlc1, COURT STAFF) (Filed on 8/22/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BEHRUZ BONSHAHI,
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Plaintiff,
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FEDEX CORPORATION, FEDEX
OFFICE AND PRINT SERVICES,
INC., CABRITA FRANCISCO,
EMILY TRE, and DOES 2 through 20,
inclusive,
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For the Northern District of California
United States District Court
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v.
NO. C12-2471 TEH
ORDER DENYING
CONTINUANCE AND
GRANTING PLAINTIFF’S
MOTION TO STRIKE
AFFIRMATIVE DEFENSES AS
TO DEFENDANTS FEDEX
CORPORATION AND FEDEX
OFFICE AND PRINT
Defendants.
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This matter comes before the Court on Plaintiff’s motions to strike the affirmative
14 defenses (Docket Nos. 14 and 22) from the answers of Defendants Fedex Corporation
15 (Docket No. 11) and Fedex Office and Print (Docket No. 6). The Court is aware that the
16 parties have jointly sought to continue the hearing on the motion (Docket No. 32). However,
17 after reviewing the parties’ written arguments, the Court concludes that oral argument is
18 unnecessary, GRANTS Plaintiff’s motion to strike, and VACATES the hearing scheduled for
19 August 27, 2012.
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21 BACKGROUND
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Plaintiff Behruz Bonshahi brings this action against Defendants FedEx Corporation,
23 FedEx Office and Print Services, Inc., and several named and unnamed individuals,
24 challenging their failure to remove structural barriers to his access to the FedEx store in
25 Walnut Creek, California. He seeks injunctive relief and damages under Title III of the
26 Americans with Disability Act of 1990 and various state law provisions, including California
27 Civil Code sections 51, 52, and 54. Compl. ¶ 2.
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Defendants FedEx Corporation and FedEx Office and Print have included in their
2 separate answers thirty identically pleaded affirmative defenses that Plaintiff now moves to
3 strike. Because the statements of affirmative defenses are identical, the Court grants both
4 motions in a single order.
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6 LEGAL STANDARD
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Under Federal Rule of Civil Procedure 12(f), a “court may strike from a pleading an
8 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A
9 defense is insufficient if it fails to provide the plaintiff with “fair notice of the defense.”
11 “has no essential or important relationship to the claim for relief or the defenses being
For the Northern District of California
United States District Court
10 Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). A matter is “immaterial” if it
12 pleaded,” and “impertinent” if it “consists of statements that do not pertain, and are not
13 necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.
14 1993), rev’d on other grounds, 510 U.S. 517 (1994) (internal quotation marks omitted).
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Motions to strike are regarded with disfavor, as they are often used as delaying tactics,
16 and should not be granted “unless it is clear that the matter to be stricken could have no
17 possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsystems,
18 Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991). “However, where the motion may have the
19 effect of making the trial of the action less complicated, or have the effect of otherwise
20 streamlining the ultimate resolution of the action, the motion to strike will be well taken.”
21 California ex rel. State Lands Comm’n v. United States, 512 F. Supp. 36, 38 (N.D. Cal.
22 1981). If an affirmative defense is stricken, “leave to amend should be freely given so long
23 as there is no prejudice to the opposing party.” Qarbon.com Inc. v. eHelp Corp., 315 F.
24 Supp. 2d 1046, 1049 (N.D. Cal. 2004).
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Neither the Supreme Court nor the Ninth Circuit has yet extended the heightened
26 pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to
27 affirmative defenses. However, this Court agrees with “the vast majority of [district] courts”
28 that have done so. Barnes v. AT & T Pension Benefit Plan-Nonbargained Program, 718 F.
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1 Supp. 2d 1167, 1171 (N.D. Cal. 2010); see also id. at 1172 (discussing reasoning for
2 extending Twombly); J & J Sports Prods., Inc. v. Mendoza-Govan, No. C10-5123 WHA,
3 2011 WL 1544886, at *1 (N.D. Cal. Apr. 25, 2011); but see Kohler v. Island Restaurants, Lp,
4 280 F.R.D. 560, 566 (S.D. Cal. 2012) (declining to extend Twombly).
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Under Twombly, 550 U.S. at 570, a pleading must contain “enough facts to state a
6 claim to relief that is plausible on its face.” Plausibility does not equate to probability, but it
7 requires “more than a sheer possibility.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “A
8 claim has facial plausibility when the plaintiff pleads factual content that allows the court to
9 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
11 cause of action, supported by mere conclusory statements, do not suffice.” Id.
For the Northern District of California
United States District Court
10 Factual allegations must be assumed to be true, but “[t]hreadbare recitals of the elements of a
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13 DISCUSSION
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Defendants argue that they are unable to answer with specificity due to Plaintiff’s
15 failure to plead with specificity. Therefore, they argue, Plaintiff should be “estopped” from
16 seeking to enforce a heightened pleading standard against Defendants. See FedEx Office &
17 Print Answer (“Ofc. & Print Ans.”) at 6; FedEx Corporation Answer (“Corp. Ans.”) at 5-7.
18 This argument is unavailing for several reasons. First, if Defendants were unable to answer
19 the complaint because it lacked sufficient facts, they should have sought to remedy this under
20 Rule 12(e) or otherwise. And second, Defendants’ pleading of their affirmative defenses is
21 so threadbare that it is insufficient under any standard. See Kohler, 280 F.R.D. at 567-572
22 (finding analogous pleading insufficient without extending Twombly and Iqbal.)
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Finally, Defendants argue that Plaintiff must show prejudice in order to succeed on his
24 motion to strike. Even if such a requirement were to apply to a motion to strike brought
25 under the “insufficient” prong of Rule 12(f), see Barnes, 718 F. Supp. 2d at 1173, the burden
26 of conducting discovery regarding irrelevant and unsustainable affirmative defenses
27 constitutes such prejudice. See id.
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Affirmative Defense No. 1 alleges that “Plaintiff’s complaint, and each purported
2 cause of action therein, fails to state facts sufficient to constitute a cause of action against this
3 answering Defendant.” Ofc. & Print Ans. at 14; Corp. Ans. at 16. Similarly, Affirmative
4 Defense No. 12 alleges that “Plaintiff has failed to state a claim for injunctive and/or
5 equitable relief.” Ofc. & Print Ans. at 16; Corp. Ans. at 19. Some courts consider failure to
6 state a claim to be a proper affirmative defense. See, e.g., Valley Cmty. Bank v. Progressive
7 Cas. Ins. Co., No. C11-0574 JF, 2011 WL 1833116, at *3 (N.D. Cal. May 13, 2011). This
8 Court, however, agrees with other courts that have concluded that “[f]ailure to state a claim is
9 not a proper affirmative defense but, rather, asserts a defect in [the plaintiff’s] prima facie
11 F.R.D. 560, 567 (S.D. Cal. 2012). It is properly brought as a motion, rather than as an
For the Northern District of California
United States District Court
10 case.” Barnes, 718 F. Supp. 2d at 1174; see also, e.g., Kohler v. Island Restaurants, Lp, 280
12 affirmative defense. Barnes, 718 F. Supp. 2d at 1174.
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Furthermore, even were the Court to consider it an affirmative defense, it is
14 insufficiently pleaded. Accord Kohler, 280 F.R.D. at 567 (striking bare allegation that ADA
15 plaintiff “fail[ed] to state a claim upon which relief can be granted”). Accordingly, the Court
16 GRANTS the motions to strike defenses 1 and 12 without prejudice to Defendants’ bringing
17 a proper motion under Rule 12(b)(6).
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Affirmative Defense No. 3 alleges that “any wrongful acts or deprivation of rights
19 were legally caused by third parties . . . [and] Defendants would be entitled to contribution
20 and/or indemnification from such third parties.” Ofc. & Print Ans. at 14; Corp. Ans. at 17.
21 Yet Defendants fail to identify any such third parties or explain why the involvement of third
22 parties relieves them of liability. As such, the defense is insufficient under even the most
23 liberal reading of Rule 8. Cf. Kohler, 280 F.R.D. at 570-71 (striking affirmative defense of
24 “failure to name indispensable party”). The motions to strike the third defenses are
25 GRANTED.
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Affirmative Defense No. 4 asserts that “Plaintiff’s claims are barred by the statute of
27 limitations.” Ofc. & Print Ans. at 15; Corp. Ans. at 12, 17. This statement is insufficient to
28 provide notice to Plaintiff. In Wyshak, the Ninth Circuit concluded that an almost identical
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1 pleading was sufficient because an attached memorandum of points and authorities explained
2 the claim. 607 F.2d at 827. Here, however, no explanation of the threadbare assertion is
3 provided. The motions to strike the fourth defenses are therefore GRANTED. Accord
4 Kohler, 280 F.R.D. at 567.
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Many of the affirmative defenses are similarly legally plausible but have not been
6 pleaded sufficiently:
7 Affirmative Defense No. 2 alleges that “Plaintiff did not exercise ordinary care, caution or
8 prudence and the resultant alleged injuries and/or damages, if any, were legally contributed
9 to and caused by Plaintiff’s careless [sic] and negligence.” Ofc. & Print Ans. at 14; Corp.
11 Affirmative Defense No. 5 alleges that “Plaintiff lacks standing and/or is not a member of the
For the Northern District of California
United States District Court
10 Ans. at 17. Defendants provide no factual or legal explanation of this assertion.
12 class intended to be protected by the applicable law . . . .” Ofc. & Print Ans. at 15; Corp.
13 Ans. at 17. Defendants provide no explanation to support this conclusion.
14 Affirmative Defense No. 6 asserts that “Plaintiff failed to mitigate his damages.” Ofc. &
15 Print Ans. at 15; Corp. Ans. at 17. Given that Plaintiff seeks exemplary damages, this could
16 be pertinent. See Kohler, 280 F.R.D. at 570. Yet Defendants provide no notice to Plaintiff of
17 the facts or law upon which they base the assertion.
18 Affirmative Defense No. 7 alleges that “Plaintiff’s request for equitable relief is barred due to
19 the doctrines of unclean hands and/or laches.” Ofc. & Print Ans. at 15; Corp. Ans. at 18. It
20 is unclear whether the doctrine of unclean hands could apply in an ADA action. See Kohler,
21 280 F.R.D. at 571. Again, the pleading provides no factual or legal explanation.
22 Affirmative Defense No. 8 alleges that “Plaintiff’s claims for equitable remedies are barred
23 due to the doctrine of waiver and/or estoppel.” Ofc. & Print Ans. at 15; Corp. Ans. at 18.
24 Affirmative Defense No. 9 alleges that “any of the alleged acts or conduct which may have
25 been engaged in by this answering Defendant were reasonable, justified, in good faith,
26 privileged and/or for legitimate, non-discriminatory business reasons.” Ofc. & Print Ans. at
27 15; Corp. Ans. at 18.
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1 Affirmative Defense No. 10 asserts that “any duty or obligation which Plaintiff claims is
2 owed by this answering Defendant has been fully performed, satisfied and/or discharged.”
3 Ofc. & Print Ans. at 16; Corp. Ans. at 18.
4 Affirmative Defense No. 13 alleges that “Plaintiff’s claims are moot.” Ofc. & Print Ans. at
5 16; Corp. Ans. at 19.
6 Affirmative Defense 16 alleges that each defendant “is not a business entity covered by the
7 Unruh Act, Americans with Disabilities Act, or the other statutes referenced by Plaintiff in
8 his Complaint.” Ofc. & Print Ans. at 17; Corp. Ans. at 19.
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None of these defenses provides fair notice to Plaintiff. “A reference to a doctrine,
11 affirmative defenses where the defendant “does not provide any factual basis” for them.
For the Northern District of California
United States District Court
10 like a reference to statutory provisions, is insufficient notice,” and it is proper to strike
12 Qarbon.com, 315 F. Supp. 2d at 1050 (striking affirmative defenses of waiver, estoppel, and
13 unclean hands under the pre-Twombly pleading standard). The Court therefore GRANTS
14 Plaintiff’s motions to strike affirmative defenses 2, 5, 6, 7, 8, 9, 10, 13, and 16.
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The remainder of the defenses contain neither factual nor legal support and are
16 furthermore of questionable legal relevance:
17 Affirmative Defense No. 11 alleges “failure to properly exhaust the appropriate remedies
18 and/or perform the necessary conditions precedent.” Ofc. & Print Ans. at 16; Corp. Ans. at
19 18. Defendants identify no “appropriate remedies” Plaintiff must exhaust or “conditions
20 precedent.” Affirmative Defense No. 14 alleges that “Defendant’s alleged acts were not
21 arbitrary and intentional, and/or such alleged acts were in furtherance of legitimate business
22 interests,” Ofc. & Print Ans. at 16; Corp. Ans. at 19. Defense No. 15 alleges that
23 Defendants’ policies and practices “bear a reasonable relation to commercial objectives
24 appropriate to an enterprise allegedly serving the public.” Ofc. & Print Ans. at 16; Corp.
25 Ans. at 19. Affirmative Defense Nos. 18 (preemption), 22 (policies facially neutral),
26 17 (Defendants’ actions based on exercise of constitutionally protected rights), 30 (release
27 and/or novation) are, again, of questionable legal relevance and are in any event
28 insufficiently pleaded. The Court GRANTS the motions to strike these defenses.
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Likewise, the court GRANTS the motions to strike Affirmative Defense Nos. 19
2 (failure to modify exempted under Unruh Act), 20 (no duty to modify), 21 (no duty to
3 provide higher degree of care), 23 (no additions since “time-frame proscribed by law”), 24
4 (requested modifications would require changes to the nature of the business), 25 (removal of
5 barriers not readily achievable), 26 (cost to modify disproportionate), 27 (punitive damages
6 constitute criminal penalty), and 28 (punitive damages violate due process). Defendants
7 provide no facts or law to explain the bare assertions that these doctrines apply.
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Affirmative Defense No. 29 states that Defendants “reserve[] the right to assert
9 additional affirmative defenses in the event discovery indicates it would be appropriate.”
11 Court GRANTS the motion to strike without leave to amend.
For the Northern District of California
United States District Court
10 Ofc. & Print Ans. at 19; Corp. Ans. at 22. Because this is not an affirmative defense, the
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13 CONCLUSION
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For the above reasons, Plaintiff’s motions to strike the affirmative defenses of
15 Defendants FedEx Corporation and FedEx Office and Print are GRANTED with leave to
16 amend except as to affirmative defense number 29. Any amended answer must be filed on or
17 before September 21, 2012.
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19 IT IS SO ORDERED.
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21 Dated: 08/22/12
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THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT
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