The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
RODNEY ELLIS, individually )
as next of kin and on behalf )
of the wrongful death )
beneficiaries of RUBY ELLIS, )
deceased, )
)
Plaintiff, )
)
v. ) No. 22-cv-02511-TMP
)
MAJESTIC OPERATIONS, LLC d/b/a )
MAJESTIC GARDENS AT MEMPHIS )
REHABILITATION AND SKILLED )
NURSING CENTER, )
)
Defendant. )
________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
________________________________________________________________
Before the court is a Motion to Strike filed by plaintiff
Rodney Ellis on October 12, 2022. (ECF No. 11.)1 Defendant Majestic
Corporations, LLC (“Majestic”) filed its response in opposition to
the motion on October 26, 2022. (ECF No. 17.) For the following
reasons, Ellis’s Motion to Strike is DENIED.
I. BACKGROUND
On August 10, 2022, Rodney Ellis initiated the present suit
against Majestic. (ECF No. 1.) Ellis alleges that he is the son
1With the parties’ consent, this case has been referred to a United
States magistrate judge to conduct all proceedings and order the
entry of a final judgment. (ECF No. 18.)
and next of kin of Ruby Ellis, who is now deceased. (Id.) According
to the complaint, Ruby Ellis was a patient at Majestic’s long term
care facility. (Id.) The suit alleges that due to Majestic’s
negligence, Ruby Ellis suffered from medical complications that
ultimately led to her death. (Id.) Majestic filed an answer to the
complaint on September 21, 2022. (ECF No. 8.) In addition to
denying many of the allegations, Majestic asserted several
affirmative defenses. (Id.) These included assertions that Ellis
had failed to state a claim under Rule 12(b)(6), that he lacked
standing, and that recovery was barred by the doctrine of
comparative fault. (Id.)
On October 12, 2022, Ellis filed the present motion. (ECF No.
11.) He asks the court to strike Paragraphs 31, 33, 34, 42, 52,
53, 55, and 58 from the “Affirmative and Legal Defenses” portion
of Majestic’s answer.2 (Id.) Ellis divides these paragraphs into
four categories: Paragraph 31, which alleges that the complaint
fails to state a claim; Paragraph 33, which alleges a lack of
standing; Paragraph 34, which alleges that Ellis has not
2In his motion, Ellis reproduces the exact text of each paragraph
of the defendant’s answer that he is moving to strike. However,
the text of Paragraph 58 as it appears in the Motion to Strike is
completely different than the text in the answer, and in fact
refers to completely different parties than those involved in this
litigation. It is unclear whether Ellis is moving to strike
Paragraph 58 as it actually appears in the defendant’s answer.
However, for the sake of completeness, the court will assume that
he is doing so.
sufficiently pled the element of conscious injury; and Paragraphs
42, 52, 53, 55, and 58, which assert the defense of comparative
fault. (Id.) Ellis argues that these defenses “are either devoid
of any factual support or are simply assertions of incorrect legal
conclusions” and therefore are “irrelevant or immaterial issues,
are insufficient as a matter of law, and/or would prejudice the
plaintiff.” (Id.)
Majestic filed its response to the motion on October 26, 2022.
(ECF No. 17.) Majestic states that it will withdraw Paragraph 31
of its answer, which argued that Ellis’s complaint failed to state
a claim. (Id.) As to the other paragraphs, however, Majestic argues
that its answer is sufficient and the defenses should stand. (Id.)
II. ANALYSIS
A. Legal Standard
Under Rule 12(f), “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). “To grant a Rule 12(f)
motion, the court must determine that the challenged allegations
are ‘so unrelated to the plaintiff's claims as to be unworthy of
any consideration as a defense and that their presence in the
pleading throughout the proceeding will be prejudicial to the
moving party.’” Damron v. ATM Cent. LLC, No. 1:10-CV-01210-JDB,
2010 WL 6512345, at *1 (W.D. Tenn. Oct. 29, 2010) (quoting 5C
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1381 Motion to Strike — Insufficient Defense (3d ed.
2004)). An affirmative defense should be stricken as “legally
insufficient” if “it is impossible for defendants to prove a set
of facts in support of the affirmative defense that would defeat
the complaint.” Snow v. Kemp, No. 10-2363-STA-cgc, 2011 WL 321651,
at *2 (W.D. Tenn. Jan. 28, 2011) (quoting Williams v. Provident
Inv. Couns., Inc., 279 F. Supp. 2d 894, 905-06 (N.D. Ohio 2003))
(internal quotations omitted).
The standard for granting a motion to strike under Rule 12 is
high. Green v. FedEx Supply Chain, Inc., No. 21-CV-2518-JPM-tmp,
2022 WL 2825010, at *2 (W.D. Tenn. June 29, 2022). Such a motion
seeks “a drastic remedy that should be used sparingly and only
when the purposes of justice require.” Driving Sch. Assoc. of Ohio
v. Shipley, No. 1:92-CV-00083, 2006 WL 2667017, at *1 (N.D. Ohio
Sept. 15, 2006). For that reason, motions to strike are generally
“disfavored by the court.” Griffin v. Bank of Am., N.A., 2:14-cv-
02335, 2014 WL 12531103, at *1 (W.D. Tenn. Oct. 7, 2014) (quoting
Johansen v. Presley, 977 F. Supp. 2d 871, 877 (W.D. Tenn. 2013)).
As a preliminary matter, the undersigned will address an issue
that is frequently raised in motions to strike affirmative defenses
and over which courts are split: whether the plausibility pleading
standard set forth in Twombly and Iqbal similarly altered the
requirements for pleading affirmative defenses. According to those
Supreme Court decisions, a complaint must “state a claim to relief
that is plausible on its face” in order to survive a motion to
dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To
do so, a plaintiff must “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). However, it is an unsettled question of law whether the
same must be true of an affirmative defense set forth in an answer.
The Sixth Circuit has explicitly declined to decide the issue.
Depositors Ins. Co. v. Est. of Ryan, 637 F. App'x 864, 869 (6th
Cir. 2016); Herrera v. Churchill McGee, LLC, 680 F.3d 539, 547 n.6
(6th Cir. 2012). The undersigned has also previously chosen not to
reach the issue. Del-Nat Tire Corp. v. A to Z Tire & Battery, Inc.,
No. 2:09-CV-02457-JPM-tmp, 2009 WL 4884435, at *2 (W.D. Tenn. Dec.
8, 2009). The only opinion in this district to address the question
held that the plausibility pleading standard is not required.
Damron v. ATM Cent. LLC, No. 1:10-CV-01210-JDB, 2010 WL 6512345,
at *2 (W.D. Tenn. Oct. 29, 2010). In other districts, courts have
reached differing conclusions. Compare Nixson v. The Health All.,
No. 1:10-cv-00338, 2010 WL 5230867, at *2 (S.D. Ohio Dec. 16, 2010)
(holding that Twombly and Iqbal apply to affirmative defenses);
Microsoft Corp. v. Lutian, No. 1:10 CV 1373, 2011 WL 4496531, at
*2 (N.D. Ohio Sept. 27, 2011) (same); with Nexterra Sys. Corp. v.
DeMaria Bldg. Co., Inc., No. 16-13454, 2017 WL 345682, at *1 (E.D.
Mich. Jan. 24, 2017) (holding that the Twombly and Iqbal standard
does not apply); Owners Ins. Co. v. Winfree, No. 2:14-0004, 2014
WL 12788843, at *2 (M.D. Tenn. May 15, 2014) (same); Hiles v. Army
Rev. Bd. Agency, No. 1:12-CV-673, 2014 WL 7005244, at *2 (S.D.
Ohio Dec. 10, 2014) (same).
In reviewing opinions that have examined the issue, the
undersigned is persuaded that the plausibility pleading standard
does not apply to affirmative defenses. For one, the holdings in
Twombly and Iqbal were limited to Rule 8(a). Twombly, 550 U.S. at
555; Iqbal, 556 U.S. at 663. Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). No such
requirement is set forth in Rule 8(c), and the opinions in Twombly
and Iqbal are silent as to that Rule. Fed. R. Civ. P. 8(c); Twombly,
550 U.S. at 555; Iqbal, 556 U.S. at 663. Practical considerations
also weigh against requiring the same level of specificity from
affirmative defenses as is required for claims in a complaint.
Although a plaintiff in a lawsuit has up until the statute of
limitations runs to investigate facts and draft their claims, a
defendant has a much more limited timeframe to respond with its
affirmative defenses. Requiring the same standard of pleading of
both parties despite this disparity would place defendants at a
disadvantage in defending against the plaintiff’s allegations.
The undersigned therefore finds that the plausibility
pleading standard does not apply to affirmative defenses. Instead,
the defendant’s answer is properly analyzed under the “fair notice”
standard, which requires that defendants provide “fair notice of
the defense that is being advanced [and] the grounds for
entitlement to relief.” Bolton v. United States, No. 2:12-CV-3031-
JPM-dkv, 2013 WL 3965427, at *3 (W.D. Tenn. Aug. 1, 2013) (quoting
Del–Nat, 2009 WL 4884435, at *2) (internal quotations omitted).
B. Sufficiency of Defenses
The undersigned finds that the affirmative defenses set forth
in Majestic’s answer provide Ellis with fair notice of the
affirmative defenses being advanced. In Paragraph 33, Majestic
asserts that Ellis has not properly pled that he has standing.
(ECF No. 8.) The answer specifies the legal and factual basis for
this affirmative defense. (Id.) Ellis certainly has fair notice of
Majestic’s arguments regarding standing. Similarly, in Paragraph
34 of its answer, Majestic states that Ellis has failed to assert
facts supporting a finding of conscious injury, an element that it
claims is required to recover damages for pain and suffering. (Id.)
Again, this assertion provides Ellis with fair notice of Majestic’s
theory of relief. Finally, Paragraphs 42, 52, 53, 55, and 58 all
state that, if proven applicable during discovery, Majestic will
assert the defenses of comparative fault and intervening or
superseding causes. (Id.) These paragraphs provide fair notice to
Ellis that these defenses may be raised, if appropriate, later in
litigation. The fair notice standard is met with regard to all of
Majestic’s affirmative defenses.
C. Prejudice to Plaintiff
Some courts have considered whether the moving party would be
prejudiced by the inclusion of the defense because “granting a
12(f) motion is ‘a drastic remedy to be resorted to only when
required for the purposes of justice.’” Bolton, 2013 WL 3965427,
at *5 (quoting Brown & Williamson Tobacco Corp. v. United States,
201 F.2d 819, 822 (6th Cir. 1953)); see also Herrera, 680 F.3d at
547 n.6; Damron, 2010 WL 6512345, at *2; 5C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1381 Motion to
Strike — Insufficient Defense (3d ed. 2022) (“Motions to strike a
defense as insufficient are not favored by the federal courts . .
. Rule 12(f) motions often are not granted in the absence of a
showing of prejudice to the moving party.”)
In this case, Ellis has not asserted that he would be
prejudiced by Majestic’s standing defense or its conscious injury
defense. However, Ellis does argue that Majestic’s comparative
fault defense prejudices him, because it may have “triggered the
Plaintiff’s one and only statutory right to amend his pleadings
pursuant to Tenn. Code Ann. § 20-1-119.” (ECF No. 11.) The statute
in question provides plaintiffs with the right to amend a complaint
to add an additional person as a defendant if an existing defendant
“alleges in an answer . . . that a person not a party to the suit
caused or contributed to the injury or damage.” Tenn. Code Ann. §
20-1-119. Once a tortfeasor is named in an answer, the plaintiff
has ninety days to amend the complaint and add the person as a
defendant or initiate a separate action against them. Id.
Other federal courts interpreting the statute have found that
assertions such as those made in Majestic’s answer do not trigger
the right to amend set forth in Tenn. Code Ann. § 20-1-119. In
Kelly v. Hobby Lobby Stores, Inc., the court analyzed a motion to
strike affirmative defenses in an answer that “generally
reference[d] unidentified non-parties or third persons and d[id]
not indicate specific potential defendants.” No. 3:21-CV-00167,
2021 WL 6499977, at *3 (M.D. Tenn. Apr. 28, 2021). There, the court
held that “[t]his lack of specificity is insufficient to implicate
Tenn. Code Ann. § 20-1-119.” Id. Another court found that “[a]
general reference to unknown intervening third parties by
[defendants] in their Answers did not ‘name’ or in any way
‘identify’ [the third party] as a non-party potential comparative
tortfeasor” such that it triggered Tenn. Code Ann. § 20-1-119.
Wagner v. Int'l Auto. Components Grp. N. Am., Inc., 131 F. Supp.
3d 746, 752 (M.D. Tenn. 2015). Finally, while not reaching the
issue of whether the right to amend had been triggered, the court
in Cahoon v. Premise Health Holding Corp. analyzed an answer under
Tenn. Code Ann. § 20-1-119 and held that references to the
comparative fault of unnamed non-parties did not prejudice
plaintiffs and did not need to be stricken. No. 3:21-CV-00235,
2021 WL 6496800, at *3 (M.D. Tenn. Sept. 15, 2021). Based on these
cases, the undersigned is satisfied that allowing the comparative
fault defense to stand will not prejudice the plaintiff.
III. CONCLUSION
For the above reasons, the Motion to Strike is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham _________
TU M. PHAM
Chief United States Magistrate Judge
February 3, 2023___________________
Date