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McBurney v. Lowe's Home Centers, LLC

United States District Court, D. Idaho

July 2, 2014

JEREMY McBURNEY, an individual, Plaintiff,
LOWE'S HOME CENTERS, LLC, f/k/a LOWE'S HIW, INC., and NATHAN MACKABEN, an individual Defendants.


CANDY W. DALE, Magistrate Judge.

Before the Court is Plaintiff Jeremy McBurney's Motion to Strike Defendant Lowe's Home Center, LLC and Nathan Mackaben's Affirmative Defenses to the Complaint and Improper Responses to the Complaint. (Dkt. 12.) Upon review, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding delay and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions will be decided on the record without oral argument. Dist. Idaho Loc. Civ. Rule 7.1(e). For the reasons discussed below, the Court will deny McBurney's motion to strike.


McBurney filed this action against Lowe's and Mackaben in the District Court of the Fourth Judicial District of the State of Idaho on December 6, 2013. (Dkt. 1-1.) McBurney alleges that his employment with Lowe's was wrongfully terminated in violation of the Family and Medical Leave Act, 29 U.S.C. ยง 2601 et seq. On December 30, 2013, Defendants jointly filed a Notice of Removal of this case from state court to this Court. (Dkt. 1.) Lowe's and Mackaben then filed separate Answers to McBurney's Amended Complaint on January 6, 2014 (Dkts. 4, 5.)

On January 22, 2014, McBurney filed his motion to strike under Rule 12(f), attacking various affirmative defenses and certain qualified denials in Defendants' answers. (Dkt. 12.) The motion is fully briefed and ripe for resolution.


Rule 12(f) of the Federal Rules of Civil Procedure provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, Rule 12(f) motions are "generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic." Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D. Cal. 2003).

The Court has broad discretion in disposing of motions to strike. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993) rev'd on other grounds 510 U.S. 517 (1994). The Court construes motions to strike in the light most favorable to the non-moving party and will deny the motion if the challenged defenses have "any relation to the subject matter of the controversy, could be held to in any manner defeat the plaintiff's claim, or if it fairly presents any question of fact or law.'" United States v. 45.43 Acres of Land Situate in Ada County, Idaho, No. 1:08-cv-463-CWD, 2009 WL 1605127 (D. Idaho June 4, 2009) (quoting United States v. Articles of Food... Clover Club Potato Chips, 67 F.R.D. 419, 421 (D. Idaho 1975)).

1. Specific Defenses

All told, McBurney moves to strike 19 "specific defenses" from Lowe's Answer and 17 from Mackaben's. Specifically, McBurney attacks defenses "A" through "F" and "H" through "T" in Lowe's Answer. (Dkt. 4). Mackaben does not plead Lowe's defenses "L" and "O" but otherwise raises the same defenses as Lowe's. (Dkt. 5) The full text of these defenses appear in Defendants' Answers and need not be repeated here.

McBurney argues that all of the challenged defenses are insufficient because they are not supported by facts. In particular, McBurney claims the lack of factual support satisfies neither the Ninth Circuit's "fair notice" standard nor the heightened Twombly /Iqbal pleading standard. See generally Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Further, he claims that some of the defenses should be stricken as redundant because they are not affirmative defenses. If these defenses are allowed to stand, McBurney claims he will incur additional discovery expenses. Defendants argue their defenses are legally sufficient and any factual uncertainties can be cured during discovery.

Under the Ninth Circuit's fair notice standard, an affirmative defense is insufficiently pled if it fails to provide the plaintiff with "fair notice of the defense." Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (per curiam). The "fair notice pleading requirement is met if the defendant sufficiently articulated the defense so that the plaintiff was not a victim of unfair surprise." Smith v. North Star Charter Sch., Inc., No. 1:10-cv-618-WBS, 2011 WL 3205280, at *3 (D. Idaho July 6, 2011) (internal quotations omitted).

Although not factually detailed, each of Defendants' specific defenses gives fair notice. Under Rules 8(b) and 8(c), the responding party must "state" defenses to the claims asserted against it. Here, Defendants did just that. As other courts have held, McBurney "can readily obtain the factual detail [he] seek[s] through common discovery practices."[1] United States v. Ctr. for Diagnostic Imaging, Inc., No. C05-58-RSL, 2011 WL 6300174, at *3 (W.D. Wash. Dec. 16, 2011).

Although district courts are divided on whether Twombly and Iqbal apply to affirmative defenses, McBurney's argument based on these cases is unpersuasive. Notably, the Ninth Circuit has continued to apply the fair notice standard to affirmative defenses after Iqbal and Twombly. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010). "This strongly suggests that the Ninth Circuit does not believe the more stringent Twombly / Iqbal standard should be applied to affirmative defenses." Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D. Cal. 2013). In addition, the Court is mindful that plaintiffs have significantly more time to formulate a complaint than defendants have to draft an answer. See Fed.R.Civ.P. 12(a)(1)(A) (providing 21 days for ...

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