The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
and
RENEE JONES,
DEANNA YARBROUGH,
K.B., MINOR CHILD,
AND K.Y., MINOR CHILD,
Intervenor-Plaintiffs,
v. No. 1:18-cv-01249-JDB-jay
CHAD DAVID ABLES,
D/B/A POPS COVE,
Defendant.
______________________________________________________________________________
ORDER DENYING INTERVENOR-PLAINTIFFS’ MOTION TO STRIKE
______________________________________________________________________________
Before the Court is the June 6, 2019, motion of Intervenor-Plaintiffs, Renee Jones, Deanna
Yarbrough, and their minor children, to strike Defendant Ables’s third affirmative defense from
his answer to Intervenor-Plaintiffs’ complaint. (Docket Entry “D.E.” 33.) Ables filed his response
opposing the motion on June 21, 2019. (D.E. 35.)
BACKGROUND
The United States of America, Plaintiff, initiated this action on December 20, 2018, against
Defendant, Chad David Ables, seeking to enforce certain provisions of Title VIII of the Civil
Rights Act of 1968 (the “Fair Housing Act” or “FHA”) on behalf of Renee Jones, Deanna
Yarbrough, and their two minor children. (D.E. 1.) On April 25, 2019, Jones, Yarbrough, and
their minor children (collectively, “Intervenor-Plaintiffs” or “Jones and Yarbrough”) filed a
motion to intervene, which this Court granted. (D.E. 19, 28.) Intervenor-Plaintiffs filed their
complaint on April 24, 2019. (D.E. 15.)
Ables owns and operates residential rental properties in Henderson County, Tennessee,
including a multi-family trailer park (“Pops Cove”) in Lexington, Tennessee. (D.E. 15-5 at ¶¶ 5–
6; D.E. 29 at ¶¶ 5–6.) According to the parties, Jones and Ables entered into an oral contract for
residency at Pops Cove, although the exact date is disputed. (D.E. 15-5 at ¶ 10; D.E. 29 at ¶ 10.)
The present case arises from this residential lease agreement.
Intervenor-Plaintiffs allege that, during the months of October to December 2017,
Defendant subjected them to discrimination on the basis of sex in violation of the FHA. (D.E. 15-
5 at PageID 68–73.) According to the complaint, Ables offered to waive Jones and Yarbrough’s
rent obligation in exchange for sex or “sexually explicit photographs and videos” of the two. (Id.
at ¶ 14.) Intervenor-Plaintiffs contend that Defendant increased their rent, attempted to illegally
evict them, and physically severed the water connection to their residence due to their resistance
to Ables’s sexual advances. (Id. at ¶ 51.)
Based on Defendant’s alleged conduct, Jones and Yarbrough assert six causes of action:
(1) that Ables, in violation of 42 U.S.C. § 3604(a), discriminated against them based on sex “by
making housing unavailable” after Jones and Yarbrough “repeatedly refused Ables’s demands for
sexually suggestive or nude photographs”; (2) that Defendant violated 42 U.S.C. § 3604(b) by
discriminating against Intervenor-Plaintiffs “in the terms, conditions, or privileges of the rental of
a dwelling because of sex” when Defendant “repeatedly turned off the water connection” to their
residence; (3) that Ables discriminated against Jones and Yarbrough in violation of 42 U.S.C. §
3604(c) “by making numerous statements . . . that indicated a preference, limitation or
discrimination because of sex or an intention to make any such preference, limitation or
discrimination,” such as statements requesting sexually explicit pictures and videos, statements
requesting sexual relations, and statements concerning Intervenor-Plaintiffs’ sexual lifestyle; (4)
that Defendant, in violation of 42 U.S.C. § 3617, coerced, intimidated, threatened, or interfered
with Intervenor-Plaintiffs “on account of their having exercised or enjoyed their rights granted or
protected” by the Fair Housing Act; (5) breach of quiet enjoyment; and (6) breach of contract.
(D.E. 15-5, ¶¶ 62–67.)
In response to Intervenor-Plaintiffs’ complaint, Defendant raised five affirmative defenses
in his answer. (D.E. 29.) At issue is Ables’s third affirmative defense in which he asserts a blanket
denial that he “did not discriminate against any person in any manner or engage in any of the
alleged unlawful behaviors.” (Id. at PageID 146–47.) Moreover, Defendant avers that
“Intervenor-Plaintiffs, upon information and belief, were selling illegal drugs out of the subject
property which posed a direct threat to the health and safety of others.” (Id.)
Intervenor-Plaintiffs now seek to strike Defendant’s third affirmative defense, arguing that
the first sentence “is merely a repeated general denial of the allegations,” as asserted in Ables’s
second affirmative defense, and “should be stricken as a ‘redundant . . . matter.’” (D.E. 33, PageID
159.) As to the second sentence, Jones and Yarbrough contend that allowing “a naked allegation”
that they sold illegal drugs on the property would cause undue prejudice and, “even if it were true,
‘would not . . . constitute a valid defense to the action.’” (Id. (quoting Bivens v. Piatt, 2015 WL
7878504, at *2 (D. Md. Dec. 4, 2015)).)
Ables concedes that the first sentence of his third defense is repetitive but argues that its
purpose is to show that he had “other purposes for evicting [Jones and Yarbrough] from the subject
property.” (D.E. 35-1, PageID 170–71.) Regarding his allegation of illegal drug sales, Defendant
points to Tenn. Code Ann. § 66-28-517, which permits a landlord to terminate a rental agreement
“if the tenant . . . behaves in a manner which constitutes or threatens to be a real and present danger
to the health, safety or welfare of the life or property of other tenants . . . or creates a hazardous or
unsanitary condition on the property that affects the health, safety or welfare or the life or property
of other tenants . . . .” Tenn. Code Ann. § 66-28-517(a)(2)–(3). Despite the fact that this statute
does not apply to the property at issue,1 Ables avers that “the principals of this statute must apply.”
(D.E. 35-1, PageID 170.) Defendant maintains that the illegal sale of drugs is a valid defense
because, if proven, it would constitute a real and present danger to others on the property and,
“[d]epending on the type of drugs that were being sold,” could create a hazardous or unsanitary
condition. (Id.)
ANALYSIS
Under Rule 12(f) of the Federal Rules of Civil Procedure, “[t]he court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
The decision to grant or deny a motion to strike is within the sound discretion of the district court.
Dassault Systemes, SA v. Childress, 663 F.3d 832, 846 (6th Cir. 2011). Motions to strike
affirmative defenses are disfavored and should be granted only when “the pleading to be stricken
has no possible relation to the controversy.” Anderson v. United States, 39 F. App’x 132, 135 (6th
Cir. 2002) (quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th
Cir. 1953)). A court will not grant a motion to strike “if the insufficiency of the defense is not
clearly apparent, or if it raises factual issues that should be determined on a hearing on the merits.”
United States v. Pretty Prods., Inc., 780 F. Supp. 1488, 1498 (S.D. Ohio 1991) (citation omitted).
1 Tennessee’s Uniform Residential Landlord and Tenant Act “applies only in counties
having a population of more than seventy-five thousand.” Tenn. Code Ann. § 66-28-102(a).
Such a motion should be granted only if “it appears to a certainty that plaintiffs would succeed
despite any state of the facts which could be proved in support of the defense . . . .” Operating
Eng’rs Local 324 Health Care Plan v. G&W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015)
(quoting Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991)).
Although neither party cites to any relevant legal authority, Tennessee law appears to
provide grounds for terminating lease agreements separate from its Uniform Residential Landlord
and Tenant Act. See Tenn. Code Ann. § 66-7-109(d)(2) (permitting the termination of a residential
tenancy if the tenant “engages in any drug-related criminal activity”). Accordingly, if what
Defendant alleges is proven, it could support his position that he had a non-discriminatory purpose
for evicting Jones and Yarbrough. As such, it is not clearly apparent that Ables’s defense is
inadequate as a matter of law. Therefore, Intervenor-Plaintiffs’ motion to strike is DENIED.
IT IS SO ORDERED this 4th day of September 2019.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE