Asante-Chioke v. Dowdle

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MALIKAH ASANTE-CHIOKE CIVIL ACTION

VERSUS NO. 22-4587

NICHOLAS DOWDLE, ET AL . SECTION "J"(5)

ORDER AND REASONS

Before the Court is a Motion to Strike Defendants’ Affirmative Defenses (Rec.

Doc. 94) filed by Plaintiff, Malikah Asante-Chioke. Defendants, Col. Lamar A. Davis,

and Nicholas Dowdle filed an opposition (Rec. Doc. 101); as did Defendants Jonathon

Downing and Gerard Duplessis (Rec. Doc. 102); and Plaintiff filed a reply (Rec. Doc.

106). Having considered the motion and memoranda, the record, and the applicable

law, the Court finds that the motion should be GRANTED IN PART AND DENIED

IN PART.

FACTS AND PROCEDURAL BACKGROUND

On November 21, 2021, Defendant Dowdle, a Louisiana State Police Officer,1

along with two former East Jefferson Levee District Police Officers (Defendants

Duplessis and Downing) shot and killed Plaintiff’s father, Jabari Asante-Chioke, after

a concerned citizen reported Mr. Asante-Chioke walking on the side of Airline

Highway carrying a gun and knife. After the officers parked on the roadway, Mr.

Asante-Chioke jogged away from them, and at one point, Mr. Asante-Chioke put his

1 Also named as a Defendant is Lamar A. Davis, the then Superintendent of the Louisiana State Police, in his

individual capacity related to alleged negligent supervision and training of Dowdle. The Court previously dismissed

claims of vicarious liability against Davis.

gun to his own head. As Mr. Asante-Chioke jogged away, the officers screamed at him

to stop and that they would shoot and kill him.

One officer jogged toward Mr. Asante-Chioke, who had slowed to a walk. When

the officer was ten feet away from Mr. Asante-Chioke, the officer pointed his weapon

at him and screamed for him to get on the ground. Mr. Asante-Chioke, without

turning or making eye contact, raised his right arm with the gun in hand in the

direction of an officer. When his arm was halfway up, that officer opened fire on Mr.

Asante-Chioke, who dropped his gun almost immediately. After he dropped the gun,

the officers continued to shoot at him, and after several bullet wounds, Mr. Asante-

Chioke fell to the ground. The officers fired a total of thirty-six rounds at Mr. Asante-

Chioke, and his autopsy revealed that he was shot twenty-four times (six gunshot

wounds on his arms, eight on his legs, and ten on his torso), causing fatal wounds.

Plaintiff, Mr. Asante-Chioke’s daughter, filed suit against the officers and their

supervisors, bringing § 1983 claims, wrongful death claims, survival claims, battery

claims, and negligent supervision claims. Plaintiff later amended the complaint,

adding an additional supervisor defendant (Doe) and an additional claim against the

Supervisor Defendants under 42 U.S.C. § 1983 alleging unlawful seizure.

Davis and Dowdle filed a motion to dismiss pursuant to Rules 12(b)(1) and

12(b)(6). (Rec. Doc. 36). The Court granted the motion in part and denied the motion

in part, dismissing the vicarious liability claims against Davis but denying the

requests for other relief. (Rec. Doc. 47). Specifically, the Court found that Plaintiff

overcame Dowdle’s defense of qualified immunity because she sufficiently alleged

that the officers initiated a second round of shots after an initial round clearly

incapacitated Mr. Asante-Chioke. Id. at 19. Further, because of the circumstances of

the case, the specificity of the facts pled, and the court’s discretion in issuing a

discovery order regarding qualified immunity, the Court declined to issue

Defendant’s requested order limiting discovery to issues of Dowdle’s qualified

immunity. Id. at 21.

On September 29, 2023, Davis and Dowdle noticed their appeal of the Court’s

denial of qualified immunity and the denial of the request for a limitation of discovery

to only facts involving the determination of qualified immunity. (Rec. Doc. 52). That

appeal is still pending on behalf of Dowdle, and discovery is stayed as to Dowdle.2

After receiving discovery responses from the EJLD Defendants that included

the identity of Supervisor John Doe, Plaintiff moved for leave to file a Second

Amended Complaint naming Acting Superintendent Captain Terry Durnin. (Rec.

Doc. 75). The Court granted the motion and docketed the Second Amended Complaint

on April 1, 2024. (Rec. Doc. 83). On April 15, 2024, each of the named Defendants

filed their Answers and Defenses to the Second Amended Complaint (Rec. Docs. 88,

89, 90). On May 6, 2024, Plaintiff filed the instant motion to strike Defendants’

affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or

2 The Fifth Circuit recently vacated and remanded this Court’s order regarding the discovery stay. Asante-Chioke v.

Dowdle, No. 23-30694, 2024 WL 2842206 (5th Cir. June 5, 2024)

scandalous matter.” Fed. R. Civ. P. 12(f). The decision to grant or deny a motion to

strike lies within the sound discretion of the trial court. Tarver v. Foret, 1996 WL

3536, *1 (E.D. La. Jan. 3, 1996). However, motions to strike under Rule 12(f) are

disfavored and “should be used sparingly by the courts” because they are considered

a “drastic remedy to be resorted to only when required for the purposes of justice.”

Pan–Am. Life Ins. Co. v. Gill, 1990 WL 58133, *2 (E.D .La. Apr. 27, 1990) (internal

quotations omitted). Additionally, the moving party must generally make a showing

of prejudice before a motion to strike is granted. Id. “Striking an affirmative defense

is warranted if it cannot, as a matter of law, succeed under any circumstance.” United

States v. Renda, 709 F.3d 472, 479 (5th Cir.2013)

Because affirmative defenses are pleadings, they are governed by the pleading

requirements set forth in Rule 8 of the Federal Rules of Civil Procedure. While Rule

8(a) describes the pleading requirements for claims for relief, subsections (b) and (c)

of Rule 8 govern the pleading requirements for defenses and affirmative defenses. See

Fed. R. Civ. P. 8. Under Rule 8(b) and (c), a defendant must “state in short and plain

terms its defenses to each claim asserted against it” and must “affirmatively state

any avoidance or affirmative defense ....“ Fed. R. Civ. P. 8(b)(1)(A) and (c)(1).

The Fifth Circuit has clarified that the “fair notice” pleading standard applies

to affirmative defenses, stating “a technical failure to comply precisely with Rule 8(c)

is not fatal” so long as the defendant pleads “with enough specificity or factual

particularity to give the plaintiff fair notice of the defense that is being advanced.”

LSREF2 Baron, LLC v. Tauch, 751 F.3d 394, 398 (5th Cir. 2014) (cleaned up). 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.” Woodfield v.

Bowman, 193 F.3d 354, 362 (5th Cir. 1999). “In some cases, merely pleading the name

of the affirmative defense ... may be sufficient” to give the plaintiff fair notice of the

defense being advanced. Id.

DISCUSSION

I. Timeliness

As an initial matter, Plaintiff’s motion is timely. Plaintiff filed the instant

motion on May 6, 2024, and Defendants filed their amended Answers and Affirmative

Defenses on April 15, 2024. Federal Rule of Civil Procedure Rule 12(f) provides that

a court may strike an insufficient defense (1) on its own; or (2) “on motion made by a

party either before responding to the pleading or, if a response is not allowed, within

21 days after being served with the pleading.” Fed. R. Civ. P. 12(f).

Defendants Davis and Dowdle argue that the motion is untimely because

Plaintiff has been on notice of the affirmative defenses since September 9, 2023, when

Defendants filed their original answers. (Rec. Docs. 48, 49). Davis and Dowdle state

that they did not amend their affirmative defenses between versions of their answers,

so Plaintiff was on notice of their defenses in September of 2023. (Rec. Doc. 101, at 7-

8). Thus, they argue, the resubmission of the affirmative defenses must not provide

Plaintiff grounds to now attack the same defenses as if just submitted. Id. at 8.

Rule 12(f)(2) states that the motion to strike may be filed within 21 days of

being served a specific pleading. The rule does not require the motion to strike to be

filed within a certain amount of time of being put on notice of the contents of a

pleading. Defendants cite to no cases supporting this reading of the rule. Because the

motion addresses the amended answers, not the original answers, and the motion

was filed within 21 days of the amended answers, the Court finds that Plaintiff’s

motion is timely.

II. Qualified Immunity Defenses

Plaintiff requests that the Court strike each Defendant’s qualified immunity

defenses as legally insufficient and lacking factual support. In their answers to the

Second Amended Complaint, Defendants Dowdle, Davis, Downing, and Duplessis

each assert a defense claiming they are entitled to qualified immunity from liability

and from suit. (Rec. Docs. 89, 90, 91). Dowdle’s qualified immunity defense states:

SECOND DEFENSE

Dowdle asserts the defense of qualified immunity to the allegations

brought against him in the Complaint in all aspects, including immunity

from liability and from suit, as he was acting as a public official in the

course of his official duties.

(Rec. Doc. 89, at 1). Davis’s qualified immunity defense also states:

SECOND DEFENSE

Davis asserts the defense of qualified immunity to the allegations

brought against him in the Complaint in all aspects, including immunity

from liability and from suit, as he was acting as a public official in the

course of his official duties.

(Rec. Doc. 90, at 1). The Louisiana State Police (LSP) Defendants Downing and

Duplessis assert the following qualified immunity defenses:

FOURTH DEFENSE

Downing and Duplessis specifically plead that they is [sic] entitled to

and protected by the qualified immunity afforded to public officials for

acts committed during the course of their official duties.

FIFTH DEFENSE

Downing and Duplessis affirmatively allege that the use of force in this

matter was reasonably necessary and objectively reasonable under the

circumstances and that the constitutional rights of Jabari Asante-

Chioke were not violated.

SIXTH DEFENSE

At all times pertinent herein, Jabari Asante-Chioke was the aggressor

and his intentional and/or illegal acts placed Downing, Duplessis and

the public in imminent danger of bodily injury. His actions resulted in

sufficient cause for the use of force.

(Rec. Doc. 91, at 2).

First, Plaintiff attacks the doctrine of qualified immunity, alongside a

thorough history of its statutory underpinnings, arguing that recent scholarship has

foreclosed the application of qualified immunity as a defense. (Rec. Doc. 94-1, at 7-

13). Specifically, Plaintiff’s brief points to a recent discovery that the original text of

what became § 1983, passed as part of the Civil Rights Act of 1871, contained a clause

stating that officials may be held liable for civil rights violations “any such law,

statute, ordinance, regulation, custom, or usage of the State to the contrary

notwithstanding.” Id. at 8. (quoting Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13

(1871)). The clause preceding the word “notwithstanding” (the “Notwithstanding

Clause”) was omitted from § 1983 in the U.S. Code without explanation. Id. at 9-11.

Plaintiff argues that the Court should construe § 1983 as including the

Notwithstanding Clause, which would eliminate the defense of qualified immunity.

Id. at 13.

However, this Court is bound by both circuit and Supreme Court precedent.

The Fifth Circuit has recognized, in dissenting and concurring opinions, Plaintiff’s

doubts regarding qualified immunity’s history. Villarreal v. City of Laredo, 94 F.4th

374, 408 n.14 (5th Cir. 2024) (en banc) (Willett, Elrod, Graves, Higginson, Ho,

Douglas, JJ., dissenting) (disagreeing with majority’s dismissal of plaintiff’s claims

based on qualified-immunity in part because such protections were “made-up

defenses that cannot possibly be squared with the statutory text”); Rogers v. Jarrett,

63 F.4th 971, 979 (5th Cir. 2023) (Willett, J., concurring) (examining the

Notwithstanding Clause and concluding that “[i]t seems a tall order to square the

modern qualified-immunity regime with Congress’s originally enacted language.).

But neither the Fifth Circuit and the Supreme Court have overturned decades of

qualified immunity jurisprudence on the basis that Plaintiff requests, and therefore

this Court must also refrain from doing so as well.

Second, Plaintiff argues that Defendants’ qualified immunity defenses are

impermissibly vague and thus fail to meet the pleading standard under Twombly and

Iqbal. (Rec. Doc. 94-1, at 13). Specifically, Plaintiff contends that Defendants did not

provide factual bases for asserting qualified immunity and failed to specify whether

they are asserting qualified immunity under federal or state law or to which claims

their asserted defense applies. Id. As to Defendant Davis, Plaintiff asserts that she

is pursuing only a state-law claim against him, so it is indisputable that he is not

entitled to federal qualified immunity. Id. at 7.

Considering the pleading standard outlined above and the fact that striking a

pleading is a drastic remedy used sparingly, the Court finds that Defendants have

adequately pled their qualified immunity defenses to survive the instant motion to

strike. Each of the qualified immunity defenses, along with the Defendant’s answers

and denials of the enumerated facts in the Second Amended Complaint, was specific

enough to give Plaintiff fair notice that the defense is being advanced. Plaintiff was

clearly not a “victim of unfair surprise;” Woodfield; 193 F.3d at 362 (“merely pleading

the name of the affirmative defense. . . may be sufficient” to provide a plaintiff with

fair notice); months before filing the instant motion, Plaintiff defended a motion to

dismissed based in part on the doctrine of qualified immunity. Further, denying this

motion to strike would not prejudice Plaintiff; she retains the right to seek summary

judgment on qualified immunity as the case moves forward. See Abene v. Jaybar,

LLC, 802 F. Supp. 2d 716, 724 (E.D. La. 2011). Therefore, the motion to strike is

denied as to Defendants’ qualified immunity defenses.

III. Statutory Immunity Defenses.

Next, Plaintiff argues that Defendants’ statutory immunity defenses should be

struck because they are either inapplicable or are insufficiently pled. (Rec. Doc. 94-1,

at 14). These defenses include Downing and Duplessis’s defenses:

EIGHTH DEFENSE

Downing and Duplessis are entitled to and hereby plead the statutory

limitation of liability, cost and interest set forth in La. R.S. 13:5106 and

La. R.S. 13:5112, as well as any other applicable statutory or

jurisprudential limitations of liability, including an award of attorney

fees, costs and interest by Plaintiff to Downing and Duplessis under

applicable law.

TENTH DEFENSE

Downing and Duplessis plead that, to the extent their acts and/or

omissions were a cause of Plaintiff’s injuries, which is denied, all such

acts and/or omissions constitute policymaking or discretionary acts for

which Downing and Duplessis are immune from liability under La. R.S.

9:2798.1.

(Rec. Doc. 91, at 2-3). These defenses also include Davis’s and Dowdle’s defenses:

NINTH DEFENSE

Dowdle pleads the statutory limitation of liability, cost and interest as

set forth in La. R.S. 13:5106 and La. R.S. 13:5112, as well as any and all

other applicable statutory or jurisprudential limitations of liability,

including any potential awards for attorneys’ fees, costs, and interest.

TENTH DEFENSE

Dowdle further pleads that to the extent that any of his acts or omissions

caused any injuries to Plaintiff, which is denied, that all such acts or

omissions constitute policymaking or discretionary acts pursuant to his

lawful powers and duties for which he is entitled to immunity from

liability under La. R.S. 9:2798.1.

SEVENTEENTH DEFENSE

Dowdle pleads as an affirmative defense any and all applicable

provisions of the Louisiana Governmental Claims Act (La. R.S. 13:5101,

et seq.), specifically including the limitation of liability contained

therein, as well as any and all other statutory or jurisprudential

limitation of liability, costs, and interest available to him under the law.

(Rec. Doc. 89, at 2-4). Davis’s answer includes the same defenses as Dowdle but

substitutes Davis’s name. (Rec. Doc. 90, at 2-4).

Again, despite the lack of factual support in pleading these affirmative

defenses, the Court finds that these statutory immunity defenses are sufficiently

specific to survive a motion to strike. Although Defendants’ answers do not specify

that these defenses apply to Plaintiff’s state law claims, the notice pleading

requirement for affirmative defenses does not require such specificity. See Woodfield,

193 F.3d at 362 (acknowledging that, “in some cases, merely pleading the name of the

affirmative defense...may be sufficient.”). The defenses, as articulated, provide

Plaintiff fair notice to seek discovery for the particular factual bases on which such

immunities and limitations may be based. Thus, these defenses need not be stricken.

IV. Failure to State a Claim Defense

Additionally, Plaintiff seeks to strike Defendants’ affirmative defenses stating

that the Complaint fails to state a claim against each Defendant. (Rec. Doc. 94-1, at

16). First, though broad, this defense provides sufficient notice to Plaintiff under the

relevant pleading standard. And second, dispensing with this defense would have no

practical effect—the Court has already ruled on Defendants’ motion to dismiss for

failure to state a claim. (Rec. Docs. 36, 47). Accordingly, the drastic remedy of striking

this defense is inappropriate.

V. Failure to Mitigate Defense

Defendants each claimed that Plaintiff failed to mitigate her claimed damages,

and Plaintiff also seeks to strike these defenses. (Rec. Doc. 94-1, at 17). Dowdle and

Davis claim:

ELEVENTH DEFENSE

Despite a reasonable opportunity to mitigate any claimed damages,

Plaintiff has failed to mitigate any damages and any recovery should be

reduced or precluded.

(Rec. Docs. 89, at 3; 90, at 3). Downing and Duplessis claim:

NINTH DEFENSE

Despite having adequate and reasonable opportunity to do so, Plaintiff

has failed to mitigate the claimed damages so that any recovery sought

herein should be reduced or precluded in its entirety.

(Rec. Doc. 91, at 2-3). Plaintiff argues that Defendants failed to provide any factual

support for this defense and offered no theory of how Plaintiff failed to mitigate. (Rec.

Doc. 94-1, at 17-18). Defendants argue that Plaintiff has been sufficiently put on

notice of this defense and discovery should be allowed so that Defendants can show

she did not take reasonable steps to mitigate her emotional distress damages. (Rec.

Docs. 101, at 20; 102, at 15).3

Although Defendants’ claims that Plaintiff failed to mitigate damages lack

factual specificity, the Court concludes the failure to mitigate damages defenses

provide Plaintiff with fair notice of the nature of defenses. Of course, Defendants will

bear the burden of proving any affirmative defenses at trial. As such, the motion is

denied as to the failure to mitigate damages defenses.

VI. Negligence and Fault-Based Defenses

Defendants claim that Mr. Asante-Chioke’s negligence or fault should bar or

reduce Plaintiff’s recovery. Specifically, Dowdle and Davis claim

TWELFTH DEFENSE

The sole and proximate cause of the injuries/damages alleged in the

Complaint were caused by the intentional acts and/or fault of Jabari

Asante-Chioke, whose intentional acts and/or fault serve as a complete

bar to recovery, or in the alternative, serve to reduce any recovery herein

through an application of comparative fault based on the

degree/percentage of fault attributable to Jabari Asante-Chioke.

THIRTEENTH DEFENSE

Dowdle pleads the comparative fault and contributory negligence of

Plaintiff and/or that of other persons or entities. Accordingly, the

injuries complained of are a result of the fault of Jabari Asante-Chioke

and/or other third persons or entities. In the alternative, in the event

that this Court finds any negligence and/or fault on the part of Dowdle,

which is specifically denied, then Dowdle respectfully avers as an

affirmative defense, the limitations set forth in Article 2324 of the

Louisiana Civil Code. Accordingly, Plaintiff’s claims are barred in whole

or in part, with any recovery reduceable by the percentage of fault of

Jabari Asante-Chioke for his own fault or neglect. Additionally to the

3 Plaintiff also argues that “to the extend that Defendants intend to assert, as support for these purported defenses,

that Mr. Asante-Chioke failed to mitigate, he had no duty (or opportunity) to mitigate, as it is well established that

the duty to mitigate arises after an injury occurs, not before.” (Rec. Doc. 94-1, at 17) (internal citations and

quotation marks omitted). These defenses refer to Plaintiff, not Mr. Asante-Chioke, so there is no need to address

Plaintiff’s arguments as to this issue.

extent proven, Plaintiff’s claims are barred in whole or in part, with any

recovery reduceable by the percentage of fault, by the comparative fault

of parties and/or entities other than this Defendant.

(Rec. Docs. 89, at 3-4; 90 at 3-4).4 Similarly, Duplessis and Downing claim:

SIXTH DEFENSE

At all times pertinent herein, Jabari Asante-Chioke was the aggressor

and his intentional and/or illegal acts placed Downing, Duplessis and

the public in imminent danger of bodily injury. His actions resulted in

sufficient cause for the use of force.

ELEVENTH DEFENSE

The sole and proximate cause of the injuries and/or damage alleged and

sued upon in the Plaintiff’s Complaint were caused by the intentional

acts and/or fault of Jabari Asante-Chioke, whose intentional acts and/or

fault are pled herein as a complete bar to any recovery herein or, in the

alternative, as serving to diminish and/or reduce any recovery herein in

proportion to the degree or percentage of fault attributable to Plaintiff.

TWELFTH DEFENSE

In the alternative, and only in the event that this Honorable Court

should find any liability on the part of Downing and Duplessis, such

liability being specifically denied at all times herein, Downing and

Duplessis affirmatively plead the contributory and/or comparative

negligence and/or fault of Jabari Asante-Chioke, and asserts that such

negligence and/or fault operates as a complete bar to any recovery by

Plaintiff herein, or in the alternative, diminishes and/or reduces any

recovery herein in proportion to the degree or percentage of negligence

and/or fault attributable to Jabari Asante-Chioke.

THIRTEENTH DEFENSE

Downing and Duplessis further assert the negligence and fault of Jabari

Asante-Chioke. His injuries were the direct result of his own fault and

negligence by refusing to obey lawful orders issued by law enforcement

officers and by brandishing and pointing a firearm at law enforcement.

His fault and negligence operate as a complete bar to Plaintiff’s recovery

or alternatively, as a partial bar to Plaintiff’s recovery to reduce her

damages in proportion to the fault of Jabari Asante-Chioke.

(Rec. Doc. 91, at 2-4). Plaintiff argues that these defenses (1) provide no factual

4 Dowdle’s and Davis’s comparative fault defenses are identical other than the Defendants’ names.

support for the claim that Mr. Asante-Chioke was at fault, (2) do not identify the

claims to which the defenses could apply and are legally insufficient as to § 1983

claims and (3) are redundant to each other. (Rec. Doc. 94-1, at 19-20). Defendants

argue that comparative fault is a valid defense to Plaintiff’s Louisiana state law

claims of wrongful death based on alleged negligence, battery, and negligent training

and supervision. (Rec. Docs 101, at 21; 102, at 17). Defendants also contend that

these defenses are facially sufficient based on the facts provided demonstrating Mr.

Asante-Chioke or others were at fault and that the defenses are not redundant

because each one is nuanced to one aspect of the comparative fault defense. Id. at 22.

The Court agrees that there is no basis to strike these defenses. Each defense

provides fair notice to Plaintiff that Defendants intend to argue that Mr. Asante-

Chioke’s actions preceding his death bar his negligence claims or reduce his recovery.

These defenses are supported with more than adequate facts to overcome a motion to

strike. Further, a close reading of the defenses demonstrates that each enumerated

defense alleges different theories: that Mr. Asante-Chioke the sole cause of the

damages here, or alternatively, that comparative fault applies to all potential actors

including Plaintiff and non-parties, and that Mr. Asante-Chioke’s specific actions

before the shooting should be considered and apportioned when determining his

contributory negligence. Accordingly, these defenses do not fall within any category

covered by Rule 12(f), and the Court denies the motion to strike them.

VII. Punitive Damages Defenses

Plaintiff also seeks to strike Defendants’ defenses that punitive damages are

not available for any Louisiana state law claims. (Rec. Docs. 89, at 4; 90, at 4; 91, at

4). Plaintiff argues that these “defenses” are legal arguments regarding the legality

of punitive damages, rather than affirmative defenses. (Rec. Doc. 94-1, at 21). The

Court disagrees that these straightforward defenses are legal arguments and finds

that the defenses are sufficient under the ordinary fair notice pleading standard.

VIII. Catch-all and Reservation of Right Defenses.

Downing and Duplessis pled the following defenses:

EIGHTEENTH DEFENSE

As discovery has not yet commenced, Downing and Duplessis reserve

the right to assert additional affirmative defenses and likewise to assert

additional affirmative defenses in accordance with the Court’s

Scheduling Order.

NINETEENTH DEFENSE

Downing and Duplessis specifically aver any and all affirmative

defenses specifically enumerated in Federal Rule of Civil Procedure 8(c)

which are applicable to this case and/or any and all affirmative defenses

recognized by the jurisprudence, and these are plead herein as if copied

in extenso to the extent that they apply.

(Rec. Doc. 91, at 4-5). Dowdle pled the following defense, and Davis pled an identical

defense, with his name substituted:

RESERVATION OF RIGHTS

Dowdle further gives notice that he intends to invoke any other defense

that may become available or appear during the subsequent proceedings

in this case and hereby reserves his right to amend these responses to

assert any such defenses within the Federal Rules of Civil Procedure

and the Orders of this Honorable Court.

(Rec. Docs. 89, at 5; 90, at 6).

The Court agrees that these defenses do not provide the required notice to

Plaintiff to prevent unfair surprise. If discovery uncovers additional affirmative

defenses that Defendants are not currently aware of, Defendants may file the

appropriate motion for leave at that time. Therefore, the Court will grant the motion

as to Duplessis and Downing’s eighteenth and nineteenth defenses and Davis and

Dowdle’s “Reservation of Rights” defenses.

Plaintiff also requests that the Court strike Davis and Dowdle’s defense

“reserving [their] right to assert all motions and issues under F.R.C.P. Rule 12.” (Rec.

Docs. 89, at 1; 90, at 1). The Court addressed this defense above, finding no basis to

strike it and that striking it would have no practical effect.

IX. Remaining Defenses

Plaintiff also requests that this Court strike Defendants’ remaining defenses

as redundant, immaterial, or lacking in factual support. The Court finds that each of

these defenses relate to Plaintiff’s § 1983 claims and state law negligence claims and

provide sufficient fair notice to survive the motion to strike. No prejudice would result

to Plaintiff from not striking these defenses, and Defendants will ultimately bear the

burden of proving them at trial. Accordingly, the Court shall defer action on these

defenses and leave the sufficiency of the allegations for determination on the merits.

Accordingly,

CONCLUSION

IT IS HEREBY ORDERED that the Motion to Strike Defendants’ Affirmative

Defenses (Rec. Doc. 94) is GRANTED IN PART AND DENIED IN PART.

Duplessis and Downing’s eighteenth and nineteenth defenses and Davis and

Dowdle’s “Reservation of Rights” defenses are struck. All other requested relief is

denied.

New Orleans, Louisiana, this 6th day of June, 2024.

CARL J. BARB

UNITED STATES/DISTRICT JUDGE

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