The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARCI D. WALKINGSTICK DIXON, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-391-KEW
)
STATE OF OKLAHOMA, ex rel. )
the Regional University System )
Of the Oklahoma Board of )
Regents d/b/a Northeastern )
State University; )
RICHARD REIF, individually; )
SHEILA SELF, individually; )
BRIANA CLIFTON-DRURY, )
individually, )
)
Defendants. )
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion to
Strike Affirmative Defenses (Docket Entry #31). In this action,
Plaintiff alleges that she was employed by Northeastern State
University from September 16, 2013 through August 16, 2018 and
that she was subjected to gender, race, and disability
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 and the Rehabilitation Act. She also
contends that Defendant Dr. Richard Reif retaliated against her
for exercising her rights under the Family Medical Leave Act
(“FMLA”).
In its answer to the Amended Complaint filed February 28,
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2020 (Docket Entry #21), Defendant State of Oklahoma asserted seven
separate affirmative defenses. Plaintiff challenges the fifth
defense which states, “NSU reserves and does not waive any defenses
available under all federal and state laws” and the seventh defense
which provides, “NSU reserves the right to amend and supplement
these defenses as Discovery proceeds.”
Plaintiff contends these “defenses” do not provide the
required notice of Defendant’s intended defenses to allow her to
prepare her case and proceed in discovery. This Court perceives
no extra effort or expense associated with the inclusion of these
reservations since they do not include any substantive defenses
requiring discovery and leave mut be sought under Fed. R. Civ. P.
15 with its limitations and requirements. What Defendant
characterizes as a “right to amend” is, in fact, must take the
form of a request for leave to amend. While such a reservation
is unnecessary and superfluous and in no way constitutes actual
affirmative defenses, striking them is equally unnecessary and
potentially prejudicial to Defendant. Striking these
reservations, however, could have the unintended consequence of
precluding Defendant’s ability to seek leave to amend through
collateral estoppel or res judicata. To that end, this Court
agrees with our sister court in finding it unnecessary to strike
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these reservations and “clutter the Court file even further with
unnecessary documents.” Schlottman v. Unit Drilling Co., LLC,
2009 WL 1764855, at *2 (W.D. Okla. June 18, 2009).
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike
Affirmative Defenses (Docket Entry #31) is hereby DENIED.
IT IS SO ORDERED this 3rd day of December, 2020.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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