Kohler v. Vestar/Kimco Santee, LP et al, No. 3:2011cv02025 - Document 83 (S.D. Cal. 2013)
Court Description: ORDER Granting In Part and Denying In Part 69 Plaintiff's Motion to Strike Affirmative Defenses. The Court Strikes Staples' fourth, thirteenth, fourteenth, seventeenth, and eighteenth affirmative defenses, as well as Staples's rese rvation of future affirmative defenses Without Leave to Amend. The Court Strikes Staples' first, second, third, fifth, sixth, seventh, eighth, ninth, fifteenth, and sixteenth affirmative defenses With Leave to Amend. The Court Denies the motion as to Staples' eleventh, twelfth, nineteenth, and twentieth affirmative defenses. Staples must file amended answer, by February 26, 2013. Signed by Judge Thomas J. Whelan on 2/12/2013. (srm)(jrd)
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Kohler v. Vestar/Kimco Santee, LP et al Doc. 83 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRIS KOHLER, 12 Plaintiff, 13 16 ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES [DOC. 69]. v. 14 15 CASE NO. 11-CV-2025-W-BLM STAPLES THE OFFICE SUPERSTORE, LLC, et al, 17 18 Defendants. Pending before the Court is Plaintiff’s motion to strike Defendant’s affirmative 19 defenses under Federal Rule of Civil Procedure 12(f). (Pl.’s Mot. [Doc. 69].) 20 Defendants oppose. (Defs.’ Opp’n [Doc. 10].) The Court decides the matter on the 21 papers submitted and without oral argument. See CIV. L. R. 7.1(d.1). For the reasons 22 discussed below, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiff’s 23 motion to strike, and GRANTS Defendants leave to amend selected affirmative 24 defenses. 25 26 I. BACKGROUND 27 On September 1, 2011, Plaintiff Chris Kohler initiated this action against Staples 28 the Office Superstore, LLC and other defendants. (Compl. [Doc. 1].) Kohler, who is -1- 11cv2025w Dockets.Justia.com 1 paraplegic and uses a wheelchair, alleges that he encountered several “physical and 2 intangible” barriers to his use and enjoyment of the restroom at a Staples store in San 3 Diego, California. (Compl. at 7-9.)1 4 In his complaint, Kohler asserts five causes of action under the Americans with 5 Disabilities Act (“ADA”) of 1990, 42 U.S.C. §§ 12101, et seq.: (1) denial of full and 6 equal enjoyment and use of the restaurant, § 12182(a); (2) failure to remove 7 architectural barriers in an existing facility, § 12182(b)(2)(A)(iv); (3) failure to design 8 and construct an accessible facility, § 12183(a)(1); (4) failure to make an altered facility 9 accessible, § 12183(a)(2); and (5) failure to modify existing policies and procedures, 10 § 12182(b)(2)(A)(ii). (Id. at 27-29.) Kohler seeks all relief available under the ADA, 11 including injunctive relief and attorney’s fees and costs. (Compl. at 29.) In addition, 12 he also asserts derivative state claims under California’s Disabled Persons Act, 13 California Civil Code §§ 54, et seq., the Unruh Civil Rights Act, California Civil Code 14 §§ 51, et seq., and relevant sections of California’s Health & Safety Code. (Id. at 2915 32.) 16 Staples answered Kohler’s complaint, denying all factual allegations and raising 17 twenty affirmative defenses. (Answer [Doc. 33].) Kohler then filed the present motion 18 to strike all of Staples’ affirmative defenses or, in the alternative, to require Staples to 19 re-plead any insufficient affirmative defenses under the Twombly2 standard. (See Pl’s 20 Mot.) Staples opposed Kohler’s motion, arguing that the Twombly standard does not 21 apply to affirmative defenses and, in the alternative, requesting leave to amend any 22 insufficient affirmative defenses. (Defs. Opp’n [Doc. 70].) 23 // 24 // 25 // 26 27 28 1 All references in this document are to page numbers. 2 Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007). -2- 11cv2025w 1 II. LEGAL STANDARDS 2 A. 3 Under Federal Rule of Civil Procedure 12(f), a court “may strike from a pleading Motion to Strike 4 an insufficient defense or any redundant, immaterial, impertinent, or scandalous 5 matter.” “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time 6 and money that must arise from litigating spurious issues by dispensing with those issues 7 prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 8 At the same time, 12(f) motions are “generally regarded with disfavor because of the 9 limited importance of pleading in federal practice, and because they are often used as 10 a delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 11 (C.D. Cal. 2003). Unless it would prejudice the opposing party, courts freely grant 12 leave to amend stricken pleadings. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th 13 Cir. 1979); see also Fed. R. Civ. P. 15(a)(2). 14 An affirmative defense may be insufficient as a matter of pleading or as a matter 15 of law. Sec. People, Inc. v. Classic Woodworking, LLC, 2005 WL 645592, at *2 (N.D. 16 Cal. 2005). “The key to determining the sufficiency of pleading an affirmative defense 17 is whether it gives the plaintiff fair notice of the defense.” Wyshack, 607 F.2d at 827 18 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (emphasis added); Simmons v. Navajo, 19 609 F.3d 1011, 1023 (9th Cir. 2010); Schutte & Koerting, Inc. v. Swett & Crawford, 20 298 Fed. Appx. 613, 615 (9th Cir. 2008). Fair notice generally requires that the 21 defendant state the nature and grounds for the affirmative defense. See Conley, 355 22 U.S. at 47. It does not, however, require a detailed statement of facts. Id. at 47-48. 23 On the other hand, an affirmative defense is legally insufficient only if it clearly lacks 24 merit “under any set of facts the defendant might allege.” McArdle v. AT&T Mobility, 25 LLC, 657 F. Supp. 1140, 1149-50 (N.D. Cal. 2009). 26 // 27 // 28 // -3- 11cv2025w 1 B. Pleading for Affirmative Defenses 2 Before addressing the merits of Kohler’s motion against each of Staples’ 3 affirmative defenses, the Court must resolve a preliminary issue raised by the parties. 4 The question is whether the Court should extend the Supreme Court’s holdings in Bell 5 Atlantic Corporation v. Twombly and Ashcroft v. Iqbal to evaluate the pleading 6 sufficiency of Staples’ affirmative defenses. See 556 U.S. 662, 129 S. Ct. 1937 (2009); 7 550 U.S. 544 (2007). 8 As discussed above, the Ninth Circuit has directed courts to evaluate the 9 pleading sufficiency of affirmative defenses under the “fair notice” standard. Wyshack, 10 607 F.2d at 827. In his motion, Kohler contends that all twenty-one of Staples’ 11 affirmative defenses are pled insufficiently. (Pl.’s Mot. 2.) In addition to arguing that 12 Staples’ defenses fail to provide fair notice, Kohler also suggests that the pleading 13 standards established by the Supreme Court in Twombly and Iqbal apply. (See Id. at 3.) 14 Although the Ninth Circuit has not yet adopted the Twombly/Iqbal pleading standard 15 for affirmative defenses, Kohler cites to several district courts that have done so.3 (Id. 16 at 3.) In response, Staples relies on several other district courts, including one within 17 this district, that has declined to extend Twombly and Iqbal to affirmative defenses.4 18 (Defs.’ Opp’n 9.) Based on the cases both parties cited, it is clear that this point of law 19 is unresolved. See Barnes, 718 F. Supp. 2d at 1171 (“[N]either the Ninth Circuit or 20 21 3 See Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221, at *2-3 (N.D. Cal. 2012) (explaining that a majority of district courts have extended Twombly and Iqbal to 23 affirmative defense pleading); Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 24 F. Supp. 2d 1167, 1171-73 (N.D. Cal. 2010); Anticancer Inc. v. Xenogen Corp, 248 F.R.D. 278, 282 (S.D. Cal. 2007). 22 25 4 See J&J Sports Prods., Inc. v. Scace, 2011 WL 2132723, at *1 (S.D. Cal. 2011); see 26 also Joe Hand Promotions, Inc. v. Estradda, 2011 WL 2413257, at *5 (E.D. Cal. 2011); Holdbrook v. SAIA Motor Freight Line, LLC, 2010 WL 865380, at *2 (D. Colo. 2010); 27 Bartronics, Inc. v. Power-One, Inc., 245 F.R.D. 532, 537 n.5 (S.D. Ala. 2007). Additionally, 28 this Court recently declined to extend the Twombly/Iqbal standard to affirmative defenses. See Kohler v. Islands Restaurants, LP, 280 F.R.D. 560 (S.D. Cal. 2012). -4- 11cv2025w 1 any other Circuit Courts of Appeals have extended Twombly’s heightened pleading 2 standard to affirmative defenses.”).5 3 Absent further direction, this Court declines to extend the Twombly/Iqbal 4 pleading standards to affirmative defenses. Several considerations inform this 5 conclusion. Most significantly, the Ninth Circuit has continued to recognize the “fair 6 notice” standard of affirmative defense pleading even after Twombly and Iqbal. See 7 Simmons, 609 F.3d at 1023; Schutte & Koerting, 298 Fed. Appx. at 615. 8 Moreover, the Supreme Court’s analysis in Twombly and Iqbal is itself limited to 9 pleadings under Federal Rule of Civil Procedure 8(a)(2). 129 U.S. at 1950; 550 U.S. 10 at 555. Rule 8(a)(2) requires that the party stating a claim for relief provide “a short 11 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 12 Civ. P. 8(a)(2) (emphasis added). Rule 8(c), on the other hand, only requires a 13 responding party to “affirmatively state” its affirmative defenses. Fed. R. Civ. P. 8(c) 14 (emphasis added). The Supreme Court’s discussion in Iqbal suggests that this 15 distinction is important. See 129 S. Ct. At 1950. Factual plausibility—which is the key 16 difference between Twombly/Iqbal pleading and “fair notice” pleading—is particularly 17 suited to claim pleading because Rule 8(a)(2) requires that the party “show[ ]” that it 18 is entitled to relief. Id. (“But where the well-pleaded facts do not permit the court to 19 infer more than mere possibility of misconduct, the complaint has alleged—but it has 20 not ‘show[n]’—‘that the pleader is entitled to relief.’”) (quoting Fed. R. Civ. P. 21 8(a)(2)). Stating an affirmative defense under Rule 8(c), however, does not require the 22 23 24 5 Kohler contends that the Tenth Circuit has decided this issue in favor of applying 25 Twombly and Iqbal to affirmative defenses. (Pl.’s Mot. 3.) Kohler’s reliance on Robbins v. 26 Oklahoma, however, is misplaced. (See id.) (citing 519 F.3d 1242, 1248 (10th Cir. 2008).) In Robbins, the Tenth Circuit applied Twombly and Iqbal to qualified immunity pleadings. 519 27 F.3d at 1246-48. But, the same court also identified the qualified immunity pleadings as part 28 of the complaint, not as an affirmative defense. Id. at 1249 (“[P]laintiffs must allege facts sufficient to show (assuming they are true) that the defendants plausibly violated their constitutional rights, and that those rights were clearly established.”). -5- 11cv2025w 1 pleader to “show” entitlement to its defense.6 See Fed. R. Civ. P. 8(c). Applying the 2 same standard of pleading to claims and affirmative defenses, despite this clear 3 distinction in the rules’ language, would run counter to the Supreme Court’s warning 4 in Twombly that legislative action, not “judicial interpretation,” is necessary to 5 “broaden the scope” of specific federal pleading standards. See 550 U.S. at 569 n. 14. 6 Finally, the Court is persuaded by the District of Colorado’s recognized 7 distinction between the time plaintiff has to compose a complaint versus the time a 8 defendant has to answer it. See Holdbrook, 2010 WL 865380, at *2. As the court 9 explained, “it is reasonable to impose stricter pleading requirements on a plaintiff who 10 has significantly more time to develop factual support for his claims than a defendant 11 who is only given [21] days to respond to a complaint and assert its affirmative 12 defenses.” Id.; see Fed. R. Civ. P. 12(a). 13 For these reasons, the Court will review the sufficiency of Staples’ affirmative 14 defenses under the “fair notice” pleading standard. 15 16 III. DISCUSSION 17 A. 18 In its first affirmative defense, Staples alleges that Kohler “fails to state a claim First Affirm ative Defense - Failure to State a Claim 19 upon which relief can be granted,” and “lacks standing to pursue his alleged claims.” 20 (Answer 13-14.) The Court agrees with Kohler that these simple identifications of 21 Staples’ defenses are insufficient to provide “fair notice.” See Wyshak, 607 F.2d at 827. 22 Although Staples’ pleading need not be supported by detailed factual allegations, it 23 must at least give notice of the “grounds upon which it rests.” Conley, 355 U.S. at 47. 24 Therefore, the Court STRIKES Staples’ first affirmative defense WITH LEAVE TO 25 AMEND. 26 27 28 6 Nor does pleading of non-affirmative defenses under Rule 8(b)(1) require any type of “showing.” See Fed. R. Civ. P. 8(b)(1). Rule 8(b)(1) only requires the responding party to “state in short and plain terms its defenses to each claim asserted against it.” Id. -6- 11cv2025w 1 B. Second Affirm ative Defense - Failure to Mitigate 2 In its second affirmative defense, Staples contends that Kohler is precluded from 3 recovery “to the extent that he failed to mitigate his alleged damages.” (Answer 14.) 4 Kohler contends that this defense is “legally irrelevant” because he seeks only statutory 5 minimum damages, which cannot be mitigated. (Pl.’s Mot. 6.) However, Kohler’s 6 complaint can be read to seek more than just minimum statutory damages. “For each 7 offense of the Disabled Persons Act, Kohler seeks actual damages (both general and 8 special damages, statutory minimum damages of one thousand dollars ($1,000), 9 declaratory relief, and any other remedy available under California Civil Code § 54.3.” 10 (Compl. 30) (emphasis added.) Section 54.3 permits an aggrieved party to seek “up to 11 a maximum of three times the amount of actual damages but in no case less than one 12 thousand dollars.” Cal. Civ. Code § 54.3(a). Kohler’s request for actual damages and 13 statutory minimum damages could be read to mean that he seeks actual damages to the 14 extent that they exceed statutory minimum damages. Without some affirmative 15 admission on Kohler’s part that his actual damages do not exceed the statutory 16 minimum, the Court cannot say that Staples’ failure-to-mitigate defense is impertinent 17 or legally irrelevant. 18 On the other hand, Staples’ answer gives no notice to Kohler of the basis of 19 his alleged failure to mitigate. For that reason, the Court STRIKES Staples’ second 20 affirmative defense WITH LEAVE TO AMEND. 21 22 C. Th ird Affirm ative Defense - Statute of Lim itations 23 In its third affirmative defense, Staples contends that Kohler’s claims are 24 “barred by the applicable statute of limitations.” (Answer 14.) Again, the Court 25 agrees with Kohler that this statement alone is insufficient to provide fair notice. In 26 Wyshak, the Ninth Circuit was confronted with a nearly identical pleading. 607 27 F.2d at 827 (“[P]laintiff’s claims are barred by the applicable statute of limitations.”). 28 In Wyshack, however, the court held that fair notice was provided because an -7- 11cv2025w 1 attached memorandum identified the actual statute upon which the defense rested. 2 Id. Here, Staples makes no mention of the applicable statute in its answer, and has 3 attached no supplemental briefing on that point. (See Answer 14.) Accordingly, the 4 Court STRIKES Staples’ third affirmative defense WITH LEAVE TO AMEND. 5 6 D. 7 8 Fourth and Eigh teenth Affirm ative Defense - Com parative Negligence & Th ird-Party Responsibility In its fourth and eighteenth affirmative defenses, Staples contends that the 9 plaintiff or a third party is responsible for any violations and damages. (Answer 14, 10 16). The Court finds that these affirmative defenses fail as a matter of law, because 11 “[t]he ADA is clear that a public accommodation is responsible for its own 12 violations of the ADA, and that such violations cannot be contracted away.” 13 Kohler v. Bed Bath & Beyond, 2012 WL 424377 at *3 (C.D. Cal. 2012) (quoting 14 United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092, 1118, rev'd on other 15 grounds by 549 F.3d 760 (9th Cir. 2008)); Kohler v. Big 5 Corp., 2012 WL 1511748 16 at *3 (C.D. Cal. 2012) (striking affirmative defense of contributory negligence as 17 legally insufficient). Accordingly, the Court STRIKES Staples’ fourth and 18 eighteenth affirmative defenses WITHOUT LEAVE TO AMEND. 19 20 21 22 E. Fifth , Seventh , and Eigh th Affirm ative Defenses - Doctrines of W aiver, Estoppel, & Lach es In its fifth, seventh, and eighth affirmative defenses, Staples argues that 23 Kohler’s claims are barred by the doctrines of waiver, estoppel, and laches. Though 24 these doctrines may be legally plausible, the Court agrees with Kohler that these 25 statements are insufficient to provide fair notice. Staples provides no basis for these 26 claims in his answer, and “a reference to a doctrine . . . is insufficient notice.” 27 Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004). 28 Staples does not dispute this contention in its opposition. Accordingly, the Court -8- 11cv2025w 1 STRIKES Staples’ fifth, seventh, and eighth affirmative defenses WITH LEAVE 2 TO AMEND. 3 4 F. Sixth Affirm ative Defense - Unclean Hands 5 In its sixth affirmative defense, Staples alleges that “Plaintiff’s claims are 6 barred to the extent he had unclean hands.” (Answer 18.) Kohler argues that, in 7 addition to being an improper defense against ADA claims, Staples also fails to plead 8 its defense with particularity under Federal Rule of Civil Procedure Rule 9(b). (Pl.’s 9 Mot. at 8-9.) Kohler relies on McKennon v. Nashville Banner Publ’g Co., 513 U.S. 10 352, 360 (1995), and Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324, 11 338 (S.D.N.Y. 2010), to support his assertion that “unclean hands” is not a defense 12 to ADA claims. (Id. at 17.) Reliance on these cases is, however, misplaced. 13 The Supreme Court in McKennon proffered no opinion about whether 14 unclean hands survives as a defense against ADA claims. See 513 U.S. at 360-61. 15 The Court merely recognized that the defense of unclean hands—or after-acquired 16 evidence in the employment context—is inappropriate to consider against the 17 equitable relief provided by Congress “to serve important national policies.” Id. at 18 360. In fact, the Court recognized that unclean hands may still be applicable to 19 non-equitable forms of relief, which Kohler also seeks in this matter. Id. at 361; 20 (Compl. 8-9, 11.) 21 Moreover, in Deer Mountain, the district court noted that “there is some 22 doubt as to the applicability of unclean hands to ADA actions.” 682 F. Supp. 2d at 23 338 n.31 (citing McKennon). But the court did not conclude that unclean hands is 24 per se barred from ADA actions; rather, it held that the facts of the record before it 25 did not support the defense. Id. Without more explicit guidance from the Ninth 26 Circuit or Supreme Court, this Court will not conclude that unclean hands is 27 inapplicable to all ADA claims. Furthermore, even if this Court did come to that 28 conclusion, it would not bar the defense to Kohler’s California claims. -9- 11cv2025w 1 Nor must Staples plead unclean hands with particularity under Rule 9(b). 2 Rule 9(b) only requires particularity when pleading fraud or mistake. Fed. R. Civ. P. 3 9(b). While allegations of fraud may provide the factual underpinning for certain 4 unclean hands defenses, there is no apparent allegation of fraud in this matter. 5 On the other hand, Staples unclean-hands defense, like all others, must still 6 provide fair notice to Kohler of the grounds upon which it rests. Here, Staples’ 7 answer provides no basis for an assertion of unclean hands, and therefore the Court 8 STRIKES Staples’ sixth affirmative defense WITH LEAVE TO AMEND. 9 10 G. 11 12 Ninth Affirm ative Defense - Failure to Exh aust Adm inistrative Rem edies or Satisfy Oth er Prerequisites for Cause of Action In its ninth affirmative defense, Staples argues that Kohler’s claims are barred 13 “to the extent he has failed to satisfy jurisdictional and/or statutory prerequisites for 14 his causes of action, and/or exhaust the appropriate administrative remedies.” 15 (Answer 14.) Kohler argues that this defense is “legally irrelevant” because there is 16 no ADA administrative notice requirement for private entities. (Pl.’s Mot. 11.) 17 However, Staples seems to be alleging more than a failure to exhaust the appropriate 18 administrative remedies because it alludes to other unmet prerequisites. In either 19 event, Staples fails to provide fair notice of its defense because its answer provides 20 no indication what the allegedly unmet prerequisites might be. Consequently, the 21 Court STRIKES Staples’ ninth affirmative defense WITH LEAVE TO AMEND. 22 23 H. Eleventh & Twelfth Affirm ative Defenses - Defendant in 24 Com pliance with Law, Property is Readily Accessible, & Plaintiff 25 Encountered No Barrier 26 In its eleventh and twelfth affirmative defenses, Staples contends that it is 27 compliant with the law, its property is readily accessible to disabled customers, and 28 Kohler encountered no barriers to access within its store. (Answer 15.) Kohler - 10 - 11cv2025w 1 argues that this is not an affirmative defense but rather a denial of Kohler’s 2 complaint. (Pl.’s Mot. 11.) Technically, Kohler is correct. Affirmative defenses are 3 allegations unrelated to the plaintiff’s prima facie case that deny the plaintiff’s right 4 to relief, even if all allegations in the complaint are true. Fed. Deposit Ins. Corp. v. 5 Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987). But simple mislabeling on 6 Staples’ part is not grounds for striking or granting partial summary judgment on its 7 defenses. Negative defenses may also be raised in Staples’ answer. See Fed. R. Civ. 8 P. 8(b). In fact, Rule 12(b) permits Staples to assert these exact defenses by motion 9 or in the responsive pleading. The Court fails to see how identifying a defense as 10 “affirmative,” when in actuality it is not, makes that defense legally insufficient. See 11 Fed. R. Civ. P. 12(f). Consequently, the Court DENIES Kohler’s motions to strike 12 affirmative defenses eleven and twelve. 13 14 I. 15 16 Th irteenth and Seventeenth Affirm ative Defenses - Access not Intentionally Im peded, Good Faith In its thirteenth and seventeenth affirmative defenses, Staples argues that it 17 “did not intentionally impede or impair access or service to plaintiff” and it made 18 good faith efforts to render its facility accessible. (Answer 15, 16.) Kohler contends 19 that intent is irrelevant to ADA claims, so this defense is legally insufficient. (Pl.’s 20 Mot. 12.) Staples made no specific rebuttal to Kohler’s argument. (See Answer.) 21 A plaintiff bringing a claim under the ADA need not show “intentional 22 discrimination . . . to establish a violation of the ADA’s access requirements.” 23 Munson v. Del Taco, Inc., 208 P.3d 623, 628 (Cal. 2009); Lentini v. California Ctr. 24 for the Arts, 370 F.3d 837, 847 (9th Cir. 2004). Furthermore, a plaintiff alleging an 25 Unruh Act violation premised on an ADA violation need not show intentional 26 discrimination. Lentini, 370 F.3d at 847. Consequently, the Court STRIKES 27 Staples’ thirteenth and seventeenth affirmative defenses WITHOUT LEAVE TO 28 AMEND. - 11 - 11cv2025w 1 J. Fourteenth Affirm ative Defense - Insufficient Notice 2 In its fourteenth affirmative defense, Staples argues that Kohler did not give it 3 sufficient notice of the need for equal accommodations or the opportunity to provide 4 equal accommodations. (Answer 15.) Kohler disagrees, citing a Ninth Circuit 5 holding that “[a] plaintiff in a private Title III action is not required to provide 6 notice to any state or local agency as a prerequisite to filing suit.” (Pl.’s Mot. 13, 7 (quoting Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000)).) To 8 be clear, Staples claims it was not personally notified prior to the lawsuit, but 9 Kohler’s motion addresses the lack of a requirement to notify a government agency 10 prior to filing a private ADA claim. (See Answer 15; Pl.’s Mot. 13.) However, the 11 Ninth Circuit held that it will not recognize a “pre-filing notice requirement” in 12 ADA cases until Congress chooses to amend the ADA to add such a requirement. 13 Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 844 (9th Cir. 2007). 14 Because there is no pre-filing notice requirement in private ADA lawsuits, the Court 15 STRIKES Staples’ fourteenth affirmative defense WITHOUT LEAVE TO 16 AMEND. 17 18 19 20 K. Fifteenth Affirm ative Defense - Liability under both th e Unruh Act and th e Public Accom m odations Act In its fifteenth affirmative defense, Staples argues that it cannot be held liable 21 for damages under both the Unruh Act and the “Public Accommodations Act.” 22 (Answer 15.) Plaintiff does not mention the “Public Accommodations Act” in his 23 Complaint. (See Compl.) Staples’ assertion provides inadequate notice to Kohler 24 because Staples simply provides no further explanation of its grounds for this defense 25 nor offers insight into its relevance. Accordingly, the Court STRIKES Staples’ 26 fifteenth affirmative defense WITH LEAVE TO AMEND. 27 28 - 12 - 11cv2025w 1 L. 2 3 Sixteenth Defense - Defendant Began to Rem edy Any Deficiencies Prior to Lawsuit’s Filing In its sixteenth affirmative defense, Staples argues that Kohler is not entitled 4 to collect attorney’s fees because Staples was already “taking measures to remedy the 5 sought after relief prior to the lawsuit.” (Answer 15-16). Kohler argues that Staples 6 seems to be rebutting a “catalyst theory of recovery.” (Pl.’s Mot. 14.) It is not clear 7 that Staples is addressing the catalyst theory of recovery. Staples fails to mention 8 the legal or factual grounds for this defense and thus the Court holds that this 9 defense does not provide fair notice to Kohler. Consequently, the Court STRIKES 10 Staples’ sixteenth affirmative defense WITH LEAVE TO AMEND. 11 12 13 14 M. Nineteenth Separate Defense - Facility Specifications Approved by Governm ent Officials In its nineteenth affirmative defense, Staples argues that its conduct was 15 privileged because government officials approved the facility’s compliance with 16 ADA standards. (Answer 16.) Kohler contends that Staples’ is erroneously relying 17 on local government officials though the ADA preempts local regulations. (Pl.’s 18 Mot. 15). The Court finds that Staples’ statement provides fair notice of its 19 affirmative defense. While not explicitly identifying the authorities or documents 20 relied on, Staples nevertheless provides sufficient direction for Kohler to investigate 21 the defense in discovery. If Staples is relying on local authorities, this affirmative 22 defense is still applicable to Kohler’s state-law causes of action. There may be 23 instances where a facility is not compliant with the California Disabled Persons Act 24 but still compliant with ADA, because the Disabled Persons Act may demand 25 higher standards than the ADA. See Cal. Civ. Code § 54.1(a)(3) (“[I]f the laws of 26 this state prescribe higher standards, it shall mean access that meets those higher 27 standards.”). Accordingly, the Court DENIES Kohler’s motion to strike. 28 - 13 - 11cv2025w 1 N. 2 3 Twentieth Affirm ative Defense - Prem ises W ith in Industry Standards In its twentieth affirmative defense, Staples argues that the “construction of 4 the premises is within industry standard dimensions.” (Answer 16.) Kohler asserts 5 that “allusions to ‘industry standards’ are not a defense to an ADA claim” and cites 6 authority regarding the dimensional-tolerances defense. (Pl.’s Mot. 17.) There is a 7 split of authority in the Ninth Circuit about the technical nature of the dimensional8 tolerances defense. Compare Indep. Living Res. v. Or. Arena Corp., 1 F.Supp 2d 9 1124, 1135 (D. Or. 1998), with Cherry v. City Coll. of San Francisco, 2006 WL 10 6602454, at *6 (N.D. Cal. 2006). Until this disparity in the law is resolved, the 11 Court finds that Staples is entitled to state its defense in its answer. Moreover, 12 Staples’ present statement of its twentieth defense provides fair notice to Kohler. 13 Kohler clearly understands what the defense entails, and Staples’ statement of its 14 defense is effectively just a response to Kohler’s complaint. (See Pl.’s Mot. 16-17). 15 Therefore, the Court DENIES Kohler’s motion to strike Staples’ twentieth 16 affirmative defense. 17 18 O. Reservation of Righ t to Assert Additional Defenses 19 In addition to Staples’ twenty affirmative defenses, Staples also seeks to 20 reserve the right to assert other affirmative defenses should the need arise during 21 discovery. (Answer 16.) Kohler argues that this is inappropriate under the Federal 22 Rules. (Pl.’s Mot. 17.) The Court agrees. The mere “‘reservation of affirmative 23 defenses’ is not an affirmative defense.” E.E.O.C. v. Timeless Investments, Inc., 24 734 F.Supp. 2d 1035, 1055 (E.D. Cal. 2010). Defendants may assert additional 25 affirmative defenses later by amending their pleadings in compliance with Rule 15. 26 See Fed. R. Civ. P. 15; U.S. v. Global Mortg. Funding, Inc., 2008 WL 5264986 at *5 27 (C.D. Cal. 2008) (“[I]f a Defendant seeks to add affirmative defenses, it must 28 comply with the procedure set out in Federal Rule of Civil Procedure 15.”); Timeless - 14 - 11cv2025w 1 Investments, Inc., 734 F.Supp. 2d at 1055 (“Rule 15 does not require a defendant to 2 “expressly reserve” unnamed affirmative defenses in its answer.”). In short, Staples 3 “is either entitled to raise additional defenses at a later time or he is not; his right to 4 reserve his rights to do so is a legal nullity.” Global Mortg. Funding, Inc., 2008 WL 5 5264986 at *5. Accordingly, the Court STRIKES Staples’ reservation of rights to 6 assert additional defenses WITHOUT LEAVE TO AMEND. 7 8 IV. Conclusion 9 For the previously stated reasons, the Court GRANTS-IN-PART and 10 DENIES-IN-PART Plaintiff’s motion to strike [Doc. 69] and ORDERS as follows: 11 1. The Court STRIKES Staples’ fourth, thirteenth, fourteenth, 12 seventeenth, and eighteenth affirmative defenses, as well as Staples’s 13 reservation of future affirmative defenses WITHOUT LEAVE TO 14 AMEND. 15 2. The Court STRIKES Staples’ first, second, third, fifth, sixth, seventh, 16 eighth, ninth, fifteenth, and sixteenth affirmative defenses WITH 17 LEAVE TO AMEND. 18 3. 19 20 21 The Court DENIES the motion as to Staples’ eleventh, twelfth, nineteenth, and twentieth affirmative defenses. 4. Staples must file its amended answer, if any, on or before February 26, 2013. 22 23 IT IS SO ORDERED. 24 25 DATED: February 12, 2013 26 27 28 Hon. Thomas J. Whelan United States District Judge - 15 - 11cv2025w
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