United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on plaintiff's motion to strike defendant's affirmative defenses. (DE 12). Plaintiff Easa Shadeh moved to strike all of Defendant Glenn Buick-GMC Trucks LLC's ("Glenn Buick") affirmative defenses except the ninth defense. Glenn Buick objected to Shadeh's motion to strike, asserting, inter alia, that Glenn Buick's defenses were proper and addressed the issues in controversy. (DE 15). Because some of Glenn Buick's affirmative defenses are insufficient as a matter of law, the Court will grant Shadeh's motion in part and strike the defenses from Glenn Buick's Answer pursuant to Rule 12(f) but deny Shadeh's motion in part and not strike the defenses that are not insufficient as a matter of law.
Shadeh filed a complaint against his former employer, Glenn Buick, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. (DE 1). In his complaint, Shadeh alleges that Glenn Buick employees regularly subjected Shadeh to offensive ethnic jokes and ethnic-based nicknames. He further alleges that Glenn Buick managers vocalized their acceptance of these comments, and that a Glenn Buick manager came to work dressed as a terrorist- wearing a "turban, " fake bomb vest, and backpack similar to the Boston Marathon Bomber-and "pretended to make bombs near a prayer rug by his GMC work desk." (DE 1 ¶ 15.d). On June 4, 2014, Glenn Buick answered Shadeh's Complaint and admitted some allegations, denied other allegations, and asserted a number of affirmative defenses. (DE 4). Shadeh now seeks to strike twelve of the thirteen defenses.
A. Legal Standard
Federal Rule of Civil Procedure 12(f) enables a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The Sixth Circuit has long held that "the action of striking a pleading should be sparingly used by the courts [because i]t is a drastic remedy to be resorted to only when required for the purposes of justice [and] granted only when the pleading to be striken ( sic ) has no possible relation to the controversy." Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). Rule 12, however, expressly permits striking defenses that are insufficient as a matter of law. Fed.R.Civ.P. 12(f); see also Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057-58 (5th Cir. 1982); Fed. Deposit Ins. Corp. v. Butcher, 660 F.Supp. 1274, 1277 (E.D. Tenn. 1987). "Motions to strike are not favored and will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Williams, 944 F.2d at 1400 (internal quotation marks and citations omitted). Although motions to strike are not favored, these motions serve to streamline the litigation by dispensing with spurious issues. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010); Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986).
1. The First Defense will not be stricken.
Glenn Buick's First Defense states that "[t]he Plaintiff's Complaint fails to state a cause of action against this Defendant upon which relief may be granted, and therefore the Complaint should be dismissed." (DE 4 at 1). Shadeh asserts that failure to state a claim is not an affirmative defense; however, Glenn Buick never declares that the first defense is an affirmative defense and Rule 12(h) explicitly states that a defendant may assert that the plaintiff failed to state a claim in a Rule 7(a) pleading, including the defendant's answer. Fed.R.Civ.P. 12(h)(2)(a). Accordingly, Glenn Buick's First Defense is not insufficient as a matter of law and the Court will not strike this defense.
2. The Second and Thirteenth Defenses will not be stricken.
The Second and Thirteenth Defenses both address whether Shadeh satisfied various procedural hurdles. In support of the Second Defense, Glenn Buick states that Shadeh did not issue a summons at the time he filed his Complaint. Similarly, the Thirteenth Defense asserts insufficiency of process and insufficiency of service of process. Because both defenses require a determination of disputed, material facts, the Court will not strike these defenses. See, e.g., United States v. Coney, 689 F.3d 365, 379 (5th Cir. 2012) (affirming a district court's denial to strike material, factual matters); Mapp v. Bd. of Ed. Of City of Chattanooga, Tenn., 319 F.2d 571, 576 (6th Cir. 1963) (finding it appropriate to strike matters not in factual dispute and not material to the action); Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962) ("A disputed question of fact cannot be decided on motion to strike.").
3. The Third Defense will not be stricken.
Glenn Buick's Third Defense contains a series of admissions and denials. Shadeh objects to the form of the defense without stating substantive grounds. An objection to the form of a defense-not its underlying substance-is not grounds to strike the defense. See Brown & Williamson Tobacco ...