United States District Court, D. Nebraska
R. Zwart, United States Magistrate Judge
has moved to strike all allegations labelled as affirmative
defenses within Defendant's answer, arguing “the
grounds that Defendants' Affirmative Defenses are
insufficient under the Federal Rules of Civil Procedure and
applicable authority.” (Filing No. 11). For
the reasons stated below, Plaintiff's motion will be
Rule 12(f) “the court may order stricken from any
pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). While the court enjoys “liberal
discretion” in determining whether to strike a
party's pleadings, doing so is an “extreme
measure” and thus motions to strike under Rule 12(f)
are “infrequently granted.” Stanbury Law Firm
v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000).
purpose of a Rule 12(f) motion to strike is to
“minimize delay, prejudice, and confusion.”
Infogroup, Inc. v. Database LLC, 95 F.Supp.3d 1170,
1195 (D. Neb. 2015) (Gerrard, J.) (internal citations
omitted). But when abused, Rule 12(f) often produces the
opposite effect by creating disputes and delaying
proceedings. Id.; see also Stanbury, 221
F.3d at 1063. So a motion to strike under Rule 12(f) will not
be granted “in the absence of some showing of
prejudicial harm” to the movant. Oglesby v.
Lesan, 2017 WL 2345666, at *2 (D. Neb. May 30, 2017).
considering motions to strike, the court looks past the
parties' labels and evaluates the actual allegations
within the pleading. As applied to answers, defenses that do
not negate elements of a claim or defenses asserting that no
viable claim has been alleged, should generally not be
designated as an “affirmative defense.” “It
does not follow, however, that the defense must be stricken
due to its mistaken designation. On the contrary, such errors
are routinely disregarded.” Bank of Beaver City v.
Sw. Feeders, L.L.C., 2011 WL 4632887, at *9 (D. Neb.
Oct. 4, 2011) (Urbom, J.).
[A]s long as the pleading clearly indicates the allegations
in the complaint that are intended to be placed in issue, the
improper designation should not operate to prejudice the
pleader. If the plaintiff has been given “plain
notice” of the matters to be litigated, which is all
the federal pleading rules require, he should be put to his
proof on those issues irrespective of any error by the
defendant regarding terminology.
Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 1269 (3d ed. 2011). Despite an
erroneous “affirmative defense” label, defenses
which notify plaintiff that it will be put to its proof are
not insufficient as a matter of law and will not be stricken.
Bank of Beaver City, 2011 WL 4632887, at *9; see
also Infogroup, Inc., 95 F.Supp.3d at 1195 n. 26.
the plausibility pleading requirements applicable to
Plaintiff's claims under Rule 8(a) of the Federal Rules
of Civil Procedure, as espoused by Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), do not apply to defenses
alleged under Rules 8(b) and 8(c). Zotos v. Lindbergh
Sch. Dist., 121 F.3d 356, 361 (8th Cir.1997);
Infogroup, Inc. v. Database LLC, 95 F.Supp.3d at
1193 (D. Neb. 2015); Bank of Beaver City, 2011 WL
4632887, at *6. An alleged defense need only
“affirmatively state any avoidance or affirmative
relief.” Fed. R. Civ. P 8(c).
moved to strike all allegations raised in Defendant's
Answer under the title “AFFIRMATIVE DEFENSES[,
]” (Filing No. 6, at CM/ECF p. 4), beginning
with the defense of failure to state a claim, (paragraph 1).
Failure to state a claim is not-in and of itself-an
affirmative defense, but it may be based on an affirmative
defense, e.g., the statute of limitations. The defense of
“failure to state a claim upon which relief can be
granted . . . may be raised . . . in any pleading.”
Fed.R.Civ.P. 12(h)(2). Plaintiff has failed to show any
prejudice arising because this defense was alleged under the
title “affirmative defenses” in Defendant's
answer. As such, it will not be stricken from the answer.
alleges Plaintiff cannot prove a claim for enhanced damages
or for violating any cable or satellite programming license
or authorization, (paragraphs 2 and 6). These defenses
challenge whether plaintiff can prove an element of
Plaintiff's claim, and they are therefore not affirmative
defenses. Defendant was not required to identify any specific
elements of Plaintiff's claim that Defendant intends to
challenge in its answer. But by doing so, Plaintiff is not
prejudiced. Instead, it is better apprised of primary issues
in dispute. Paragraphs 2 and 6 will not be stricken merely
because they were incorrectly identified as affirmative
3, 4, 5, 7, and 8 of the affirmatives defenses allege
Plaintiff's statutory penalty demands are excessive under
the Due Process Clause, its claims are barred by the doctrine
of acquiescence and the statute of limitations, and
Plaintiff's entitlement to relief, if any, is limited due
to payment and Plaintiff's failure to mitigate. As to
each of these allegations, Defendant is stating that even if
Plaintiff proves the elements of its claims, it is not
entitled to recover all or a portion of the relief requested.
By raising these allegations in the answer, Defendant has
affirmatively stated an avoidance or affirmative defense to
Plaintiff's claim. Fed.R.Civ.P. 8(c). While
Plaintiff's brief also argues the merits of
Defendant's affirmative defenses, these arguments are not
properly raised on a motion to strike. They will not be
addressed in this order.
paragraph 9 states Defendant reserves the right to raise
additional defenses supported by the discovery. This
allegation appears limitless, but in reality, this court will
not permit a party to proceed on allegations that are not
specifically raised by the deadline set for moving to amend
pleadings. That deadline will be set in the final progression
order, which will be entered after the court rules on
Defendant's anticipated ...