“We think that the District Court erred in striking the affirmative defenses of the answer. It has not been shown that these defenses have no relation to the controversy.”
How later courts described this case
- “We think that the District Court erred in striking the affirmative defenses of the answer. It has not been shown that these defenses have no relation to the controversy.”
- noting that striking “is a drastic remedy to be resorted to only when required for the purposes of justice” (emphasis added)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELECTRONIC MERCHANT, ) CASE NO. 1:23-cv-01012
SYSTEMS LLC, )
)
Plaintiff/Counter-Defendant, )
) JUDGE BRIDGET MEEHAN BRENNAN
v. )
)
SEARCHFINDER LLC, et al., ) OPINION AND ORDER
)
Defendants/Counter-Claimants )
Before this Court is the motion to strike Electronic Merchant Systems LLC’s (“Plaintiff”)
affirmative defenses (Doc. No. 22) filed by Searchfinder LLC and Vasily A. Fomin
(“Defendants”). This motion is fully briefed. (Doc. Nos. 24, 25.) For the reasons that follow,
this motion is DENIED.
I. Background
On April 17, 2023, Plaintiff initiated this action against Defendants in the Cuyahoga
County Court of Common Pleas, alleging two causes of action related to duties owed under the
parties’ contract and one count of fraud. (Doc. No. 1-1 at 13-14.)1 This case was properly
removed to this Court pursuant to the Court’s diversity jurisdiction. (Doc. Nos. 1, 21.)
1 For ease and consistency, record citations are to the electronically stamped CM/ECF document
and PageID# rather than any internal pagination.
On May 26, 2023, Defendants moved to dismiss the fraud claim under Fed. R. Civ. P.
12(b)(6). (Doc. No. 4 at 117.) Plaintiff then filed a notice of voluntary dismissal with prejudice
of the fraud claim. (Doc. No. 10 at 252.)
Defendants filed an answer and counterclaims on June 8, 2023. (Doc. No. 11 at 254.)
Defendants alleged five counterclaims: breach of contract (Counterclaim One), fraudulent
misrepresentation and concealment (Counterclaim Two), fraudulent inducement (Counterclaim
Three), unjust enrichment (Counterclaim Four), and declaratory relief (Counterclaim Five).
Plaintiff replied to Defendants’ counterclaims on July 20, 2023. (Doc. No. 18.)
In its reply, Plaintiff raised ten affirmative defenses. (Id. at 410-11.) Defendants now
move to strike five of these defenses. (Doc. No. 22 at 628-31.) Plaintiff pleaded the defenses at
issue as follows:
2. The Counterclaim fails to state a claim upon which relief can be granted against
Plaintiff.
5. Defendants’ claims are barred by their own default.
6. Defendants have breached the implied covenant of good faith and fair dealing.
7. Defendants claims are barred by the doctrine of unclean hands.
8. At all relevant times, Plaintiff acted reasonably and in good faith.
(Doc. No. 18 at 410.)
II. Law
Fed. R. Civ. P 12(f) allows a court to “strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” “Motions to strike under Rule
12(f) are addressed to the sound discretion of the trial court.” Chiancone v. City of Akron, No.
5:11-cv-337, 2011 WL 4436587, at *2 (N.D. Ohio Sept. 23, 2011). However, such motions “are
viewed with disfavor and are not frequently granted.” Operating Engineers Local 324 Health
Care Plan v. G & W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015). “[T]he action of striking
a pleading should be sparingly used by the courts,” “resorted to only when required for the
purposes of justice,” and “only when the pleading to be stricken has no possible relation to the
controversy.” Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.
1953).
While there is disagreement within this District regarding the proper affirmative defense
pleading standard,2 the Court concludes that an affirmative defense is properly pleaded if it
provides “fair notice of the nature of the defense.” Lindenbaum v. Energy Servs. Providers, Inc.,
No. 1:21-cv-00764, 2021 WL 3036505, at *3 (N.D. Ohio July 19, 2021) (quoting Lawrence v.
Chabot, 182 F. App’x 442, 456 (6th Cir. 2006)). Under this standard, “general or boilerplate
defenses are acceptable, even if they lack factual specificity, so long as it remains possible that
the defenses relate to the claims at hand.” Id. (quoting Fed. Trade Comm’n v. Stratford Career
Inst., No. 16-cv-371, 2016 WL 3769187, at *2 (N.D. Ohio July 15, 2016)); see also Brown &
Williamson, 201 F.2d at 822 (“We think that the District Court erred in striking the affirmative
defenses of the answer. It has not been shown that these defenses have no relation to the
controversy.”). “If, however, the relevant legal standard for the defense makes the affirmative
defense completely inapplicable, then the defense must be struck.” Stratford, 2016 WL
3769187, at *2.
2 Compare Revolaze, LLC v. Target Corp., No. 1:17-cv-2417, 2018 WL 8838853, at *2 (N.D.
Ohio July 31, 2018) (“Affirmative defenses should provide enough notice to the opposing party
that indeed there is some plausible, factual basis for the assertion and not simply a suggestion of
the possibility that it may apply to the case.” (cleaned up)) with Greenberger v. Bober, Markey,
Fedorovich & Co., 343 F.R.D. 375, 377-78 (N.D. Ohio 2023) (“An affirmative defense may be
pleaded in general terms and will be held to be sufficient as long as it gives plaintiff fair notice of
the nature of the defense.” (cleaned up)).
III. Analysis
Defendants have not demonstrated why the Court should grant the “disfavored” remedy
of striking an affirmative defense. G & W Constr. Co., 783 F.3d at 1050. To start, Defendants
have not shown, with supporting legal authority, that any of these defenses are unavailable as a
matter of law. Stratford, 2016 WL 3769187, at *2. Nor does Defendants’ motion or reply brief
explain why Plaintiff’s affirmative defenses do not “relate to the claims at hand.” Lindenbaum,
2021 WL 3036505, at *3. This dispute generally concerns parties’ rights and responsibilities
under a merchant services contract. (See Doc. No. 11 at 264, ¶ 15; Doc. No. 1-1 at 12, ¶ 3.)
Each affirmative defense can be reasonably understood as related to this agreement. In the end,
Plaintiff provided Defendants with “fair notice of the nature of its [defenses].” Lindenbaum,
2021 WL 3036505, at *3.
In this litigation, the Court’s denial of the motion to strike places the parties in the same
position relating to affirmative defenses. This is so because the affirmative defenses in
Defendants’ answer provided the same lack of specificity about which they complain. Like
Plaintiff, Defendants raise the defense of “fail[ing] to state a claim upon which relief may be
granted” without providing any additional support. (Doc. No. 11 at 259, ¶ 5.) Defendants also
simply state that “any alleged damages that [Plaintiff] sustained is a result of [Plaintiff’s]
wrongdoing and unclean hands as detailed in the counterclaim below.” (Id. at 259, ¶ 7.) And,
just like Plaintiff, Defendant did not provide the specific conduct that supports the “unclean
hands” defense. (Compare id. with Doc. No. 18 at 410, ¶ 7.) That Defendants largely pleaded
affirmative defenses with the same level of specificity as Plaintiff leads to the conclusion that it
would be inappropriate for the Court to use its discretion to strike one party’s affirmative
defenses but not the other. Brown & Williamson, 201 F.2d at 822 (noting that striking “is a
drastic remedy to be resorted to only when required for the purposes of justice” (emphasis
added)).
IV. Conclusion
For the reasons stated herein, Defendants’ motion to strike is DENIED.
IT IS SO ORDERED.
________________________________
BRIDGET MEEHAN BRENNAN
Date: October 16, 2023 UNITED STATES DISTRICT JUDGE