Dawley v. Acme Block & Brick, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NORTHEASTERN DIVISION

J. DAWLEY, )

)

Plaintiff, )

)

v. ) No. 2:19-cv-00052

)

ACME BLOCK & BRICK, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the Court is Jessica Dawley’s Motion to Strike Certain Immaterial, Misleading, and

Impertinent Matter from Defendant’s Answer and Certain Insufficiently Pled and/or Legally

Insufficient Affirmative Defenses (“Dawley’s Motion”) (Doc. No. 23), to which Acme Block &

Brick, Inc. (“Acme”) filed a response (Doc. No. 30). For the following reasons, Dawley’s Motion

will be denied.

I. BACKGROUND

The Complaint begins with an unnumbered introductory paragraph alleging that when

Dawley informed her previous employer Acme that she was a transgender female, Acme retaliated

against her and subjected her to an on-going campaign of sex discrimination and harassment, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Tennessee

Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101, et seq. (Doc. No. 1 at 1–2.) Acme

responds with its own narrative response describing its allegedly legitimate, non-pretextual

business reasons for its actions. (Doc. No. 18 at 1–5.) The Answer also responds to the Complaint’s

numbered paragraphs (id. at 5–8) and asserts thirty affirmative defenses (id. at 8–12).

Pursuant to Federal Rule of Civil Procedure 12(f), Dawley now moves to strike portions of

Acme’s Answer and eight of its affirmative defenses.

II. LEGAL STANDARD

Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of

the motion [to strike] is to ‘avoid the expenditure of time and money that must arise from litigating

spurious issues by dispensing with’ them early in the case.” Operating Eng’rs Local 324 Health

Care Plan v. G&W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (quoting Kennedy v. City of

Cleveland, 797 F.2d 297, 305 (6th Cir. 1986)). Such motions, however, “are viewed with disfavor

and are not frequently granted.” Id. at 1050 (citing Brown & Williamson Tobacco Corp. v. United

States, 201 F.2d 819, 822 (6th Cir. 1953)). Indeed, a “motion to strike should be granted only when

the pleading to be striken [sic] has no possible relation to the controversy.” Parlak v. U.S.

Immigration and Customs Enforcement, No. 05-2003, 2006 WL 3634385, at *1 (6th Cir. Apr. 27,

2006) (citing Brown, 201 F.2d at 822).

III. ANALYSIS

Dawley moves to strike from the Answer Acme’s (1) introductory narrative; (2) responses

to paragraphs 3, 5, 13, 21, and 22 of the Complaint; and (3) affirmative defenses 2, 7, 11, 12, 18,

20, 21, and 30. (Doc. No. 23.) The Court will address each of these in turn.

A. Introductory Narrative

Dawley argues that Acme’s “initial five (5) page lengthy and unsupported narrative

containing its theory of the case and other factual allegations, wholly without support, should be

stricken from its Answer.” (Doc. No. 23 at 2.) The Court disagrees. First, Acme could not have

fairly responded to the Complaint’s introductory narrative without providing one of its own.

Second, the Court cannot say that Acme’s narrative position has no possible relation to the

controversy, particularly because it focuses on Acme’s allegedly non-pretextual business reasons

for its actions towards Dawley. See Parlak, 2006 WL 3634385, at *1. Last, Acme’s narrative

response is not prejudicial because Acme will still need to offer proof to support these factual

allegations at the summary judgment stage. See Saulsberry v. FedEx Exp., No. 2:11-cv-02581-

AJT-cgc, 2013 WL 596061, at *1 n.3 (W.D. Tenn. Jan. 15, 2013) (citing Behrens v. Pelletier, 516

U.S. 299, 309 (1996)) (“[T]he allegations in the . . . Answer are not evidence from which a party

may demonstrate a genuine issue of material fact for purposes of summary judgment.”).

Accordingly, the Court will deny Dawley’s motion to strike Acme’s narrative introduction.

B. Responses to Specific Paragraphs in the Complaint

Dawley also moves to strike Acme’s responses to paragraphs 3, 5, 13, 21, and 22 of the

Complaint because they “contain false, non-responsive, immaterial arguments and do not conform

to the requirements of Rule 8 of the Federal Rules of Civil Procedure. . . .” (Doc. No. 23 at 3–7.)

“Rule 8 . . . provides for only three possible responses to allegations contained in a civil complaint:

(1) admit the allegations; (2) deny the allegations; or (3) state that there is insufficient knowledge

or information to form a belief about the truth of the allegations.” United States v. Vehicle 2007

Mack 600 Dump Truck, 680 F. Supp. 2d 816, 822 (E.D. Mich. 2010) (citing Fed. R. Civ. P. 8(b)(1)-

(5)). “A denial ‘must fairly respond to the substance of the allegation.’” Id. (citing Fed. R. Civ. P.

8(b)(2)). Courts have concluded that “other responses” not listed in Rule 8 are insufficient to

constitute a denial, such as “[a]nswers that neither admit nor deny but simply demand proof of the

plaintiff’s allegations[,]” id. (citing 5 Charles Alan Wright & Arther R. Miller, Federal Practice &

Procedure § 1264 (3d ed.)), or “[r]esponses that documents speak for themselves and that

allegations are legal conclusions. . . .” Gulf Restoration Network v. U.S. Envtl. Prot. Agency, No.

18-1632, 2018 WL 5297743, at *3 (E.D. La. Oct. 25, 2018) (quoting Lane v. Page, 272 F.R.D.

581, 602–03 (D.N.M. 2011)).

Here, the Court finds that the Answer’s responses to paragraphs 3, 5, 13, 21, and 22 of the

Complaint fairly respond to the substance of Dawley’s allegations. For example, the Answer

specifically states that the allegations in paragraphs 3, 5, and 21 of the Complaint are “generally

admitted,” and that the allegations in paragraphs 13 and 22 are denied. (Doc. No. 18 at 6–7.)

Moreover, paragraph 48 of the Answer states that Acme “specifically denies each and every

allegation in the Complaint that is not specifically admitted herein.” (Id. at 8; see also Fed. R. Civ.

P. 8(b)(3) (“A party that does not intend to deny all the allegations must either specifically deny

designated allegations or generally deny all except those specifically admitted.”)). Although

Acme’s responses indeed include extra information and alternative versions of the Complaint’s

factual allegations, “[w]hatever additional information [Acme] seeks to provide in addition to a

denial is well within [its] right.” Rapaport v. Soffer, No. 2:10-cv-935-MMD-RJJ, 2012 WL

2522069, at *2 (D. Nev. June 29, 2012).

Accordingly, the Court will not strike Acme’s responses to paragraphs 3, 5, 13, 21, and 22

of the Complaint for failing to comply with Rule 8.

C. Affirmative Defenses

Dawley also moves to strike from the Answer the following eight affirmative defenses:

Affirmative Defense 2: All o[r] part of Plaintiff’s claims may be barred by the failure of

the Plaintiff or EEOC to exhaust and/or timely exhaust internal and external administrative

remedies and/or failure to meet the applicable jurisdictional requirements.

Affirmative Defense 7: The Defendant is entitled to and requests attorneys’ fees and costs

for the defense of this action.

Affirmative Defense 11: Plaintiff’s allegations of discrimination and retaliation due to

gender transitioning are not claims compensable under Title VII or the THRA.

Affirmative Defense 12: The Court lacks subject matter jurisdiction as the Complaint

states no viable federal law claim.

Affirmative Defense 18: With regard to her Title VII claims, the Plaintiff is limited to only

those claims set out in her Charge of Discrimination to the EEOC. Any allegations she now

makes that were not in her Charge or any allegations that related to events occurring more

than 300 days before the Charge are also barred by the statute of limitations.

Affirmative Defense 20: Acme is entitled to recover from the Plaintiff its reasonable

attorney fees for defending this lawsuit and its costs, litigation expenses and all other such

further, general and equitable relief which the interest of justice require and which the

Court deems appropriate.

Affirmative Defense 21: The Plaintiff has no legally cognizable claim under Title VII or

the THRA and has pleaded insufficient factual allegations to support any retaliation claim

and therefore she has failed to state a claim on which relief may be granted. The Complaint

should be dismissed pursuant to F.R.C.P. 12(b)(6).

Affirmative Defense 30: The Plaintiff remains employed full time. The Plaintiff has

sustained no tangible job detriment.

(Doc. No. 23 at 7–10; see also Doc. No. 18 at 9–12.) Dawley argues that “[m]any of these defenses

are legally insufficient and/or lack the proper sufficiency to put [her] on fair notice of the defense

being raised.” (Doc. No. 23 at 8.) Acme disagrees and contends that it would be prejudicial for the

Court “to strike affirmative defenses before [the parties] have a sufficient record to determine

whether the defenses ultimately will apply or not in this case.” (Doc. No. 30 at 5–6.)

“The Sixth Circuit has not decided the applicability of Twombly and Iqbal to affirmative

defenses[,]” and “the prevailing view among district courts within the Sixth Circuit is that the

defendant does not need to plead an affirmative defense with the particularity required by

Twombly and Iqbal.” Thomas v. Imperial Cleaning Sys., Inc., No. 3:18-cv-00772, 2019 WL

3210101, at *5 (M.D. Tenn. June 20, 2019), report and recommendation adopted by 2019 WL

3202999 (July 16, 2019); see also Sec’y of U.S. Dept. of Labor v. Kavalec, No. 1:19-CV-00968,

2020 WL 1694560, at *4 (N.D. Ohio Apr. 7, 2020). Instead, “[a]n 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.” Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir. May 16, 2006);

see also Davis v. Sun Oil Co., 148 F.3d 606, 612 (6th Cir. 1998) (finding affirmative defense that

“Plaintiff’s claims are barred by the doctrine of res judicata” was sufficient because it gave plaintiff

notice of the defense). However, the Court may strike an affirmative defense as “insufficient if, as

a matter of law, the defense cannot succeed under any circumstances or has ‘no possible relation

to the controversy.’” Fed. Trade Comm’n v. Stratford Career Inst., No. 16-CV-371, 2016 WL

3769187, at *2 (N.D. Ohio July 15, 2016) (quoting Brown, 201 F.2d at 822)); see also Kavalec,

2020 WL 1694560, at *4. In other words, “a court must not tolerate shotgun pleading of affirmative

defenses, and should strike vague and ambiguous defenses which do not respond to any particular

count, allegation or legal basis of a complaint.” Morrison v. Exec. Aircraft Refinishing, Inc., 434

F. Supp. 2d 1314, 1318 (S.D. Fla. 2005) (citing Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir.

2001)).

Here, Dawley does not argue that Acme’s second, seventh, eighteenth, or twentieth

affirmative defenses fail to meet the “fair notice” standard. (See Doc. No. 23 at 8–10.) And she

cannot reasonably argue that she lacks fair notice of the nature of Acme’s eleventh, twelfth,

twenty-first, and thirtieth affirmative defenses, particularly in light of her very substantive

responses to each defense in her motion. Moreover, each of these defenses has more than a

plausible or arguable connection to the Complaint’s allegations. Although Dawley may disagree

with the substance of Acme’s affirmative defenses, she has not demonstrated any valid reason for

the Court to grant the drastic remedy of striking them from the Answer.

Accordingly, the Court will deny Dawley’s request to strike Acme’s affirmative defenses.

IV. CONCLUSION

For the foregoing reasons, Dawley’s Motion (Doc. No. 23) is DENIED. This case is

returned to the Magistrate Judge for further case management.

IT IS SO ORDERED.

WAVERLY A CRENSHAW, JR. ;

CHIEF UNITED STATES DISTRICT JUDGE