Sherman

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 EDWARD B. SPENCER, Case No.: 1:21-cv-01551-JLT-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DENY PLAINTIFF’S MOTION TO STRIKE

13 v. DEFENDANT’S FIRST AFFIRMATIVE

DEFENSE AS ASSERTED IN THE FIRST

14 STUART SHERMAN, et al., AMENDED ANSWER

15 Defendants. (Doc. 42)

16 14-Day Objection Period

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Plaintiff Edward B. Spencer is proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. section 1983.

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I. RELEVANT BACKGROUND

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On October 6, 2025, Plaintiff filed a motion to strike Defendant’s affirmative defenses.

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(Doc. 33.) Defendant opposed (Doc. 35) and Plaintiff replied (Doc. 36).

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On December 17, 2025, the Court issued Findings and Recommendations to Grant in Part

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and Deny in Part Plaintiff’s Motion to Strike Affirmative Defenses. (Doc. 38.) On January 22,

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2026, the presiding district judge adopted the findings and recommendations in full. (Doc. 40.)

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On January 22, 2026, Defendant filed a first amended answer. (Doc. 41.)

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On February 17, 2026, Plaintiff filed a second motion to strike, challenging the first

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affirmative defense asserted in Defendant’s first amended answer. (Doc. 42.) Defendant filed an

1 opposition on March 3, 2026. (Doc. 43.)

2 II. DISCUSSION

3 Applicable Legal Standards

4 Federal Rule of Civil Procedure 8(c) requires the responding party to “affirmatively state

5 any avoidance or affirmative defense” and then provides a nonexhaustive list of affirmative

6 defenses that may be pled in response to vitiate the plaintiff's claim. Fed. R. Civ. P. 8(c)(1); Jones

7 v. Bock, 549 U.S. 199, 212 (2007) (finding list “nonexhaustive”). An affirmative defense is an

8 assertion of facts that if proven would defeat or reduce the stated claim. Thus, allegations that

9 merely claim the plaintiff cannot meet his burden of proof or merely reserves the right to identify

10 future defenses is not a proper affirmative defense. See Zivkovic v. So. Cal. Edison Co., 302 F.3d

11 1080, 1088 (9th Cir. 2002).

12 Pursuant to Federal Rule of Civil Procedure 12(f), the Court may strike from an answer

13 “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

14 Civ. P. 12(f). An affirmative defense may be insufficient either “as a matter of pleading or as a

15 matter of law.” Harris v. Chipotle Mexican Grill, Inc., 303 F.R.D. 625, 627-28 (E.D. Cal. 2014)

16 (citing Dodson v. Strategic Restaurants Acquisition Co., 289 F.R.D. 595, 603 (E.D. Cal. 2013)).

17 “Legal insufficiency means that the affirmative defense lacks merit ‘under any set of facts the

18 defendant might allege.’ Pleading insufficiency means a failure to provide the plaintiff with fair

19 notice.” Dodson, 289 at F.R.D. at 603 (internal citations omitted). An affirmative defense must

20 give fair notice of the defense pled. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir.

21 1979).

22 “In Kohler v. Flava Enterprises, Inc., the Ninth Circuit continued to apply the ‘fair notice’

23 standard to affirmative defenses.” Chock v. Stryker Corp., No. 1:21-cv-00996-KES-CDB, 2025

24 WL 1797933, at *1 (E.D. Cal. June 30, 2025) (citing Kohler v. Flava Enterprises, Inc., 779 F.3d

25 1016, 1019 (9th Cir. 2015)) (“[T]he ‘fair notice’ required by the pleading standards only requires

26 describing the defense in ‘general terms.’”).1 While Kohler did not address any tension with

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1 More recently, the Ninth Circuit endorsed the continuing applicability of the “fair notice” standard to

1 Twombly and Iqbal’s “plausible on its face” standard for complaints,2 courts in this district have

2 interpreted Kohler as reflecting that Wyshak’s “fair notice” standard continues to apply to

3 affirmative defenses.3 See id. (citing Gomez v. J. Jacobo Farm Lab. Contractor, Inc., 188 F.

4 Supp. 3d 986, 991–92 (E.D. Cal. 2016) (collecting cases)).

5 “An affirmative defense is adequately pled if it gives the opposing party ‘fair notice of the

6 defense’ such that the other party may rebut the defense or strategize accordingly.” Gen.

7 Convention of New Jerusalem in United States of America v. Calamigos Ranch Corp., No. 2:23-

8 cv-00572-HDV-MAR, 2023 WL 6192704, at *2 (C.D. Cal. Aug. 10, 2023) (citing Simmons v.

9 Navajo Cnty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) (quoting Wyshak, 607 F.2d at 827)

10 (overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016)).

11 Although the “fair notice” standard is relatively low, it imposes a requirement that there be “some

12 valid factual basis” pleaded in support of the affirmative defense. Rosen v. Masterpiece Mkgt.

13 Grp., 222 F. Supp. 3d 793, 798 (C.D. Cal. 2016) (citations omitted).

14 Analysis

15 The first amended answer asserts the following first affirmative defense:

16 At all relevant times, Defendant acted within the scope of discretion,

with due care, and with good faith in fulfillment of Defendant’s

17 responsibilities under all applicable statutes, rules, regulations, and

practices; within the bounds of reason under all circumstances

18 known, and with the good-faith belief that his actions comported with

all applicable federal and state laws. Defendants therefore assert that

19 Plaintiff’s claim is barred, limited, or controlled by principles of

immunity, including the federal-law principle of qualified immunity.

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21 (Doc. 41 at 6.) It mirrors the first affirmative defense pled in Defendant’s original answer. (See

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23 2 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009),

establishing a “plausible on its face” standard as to allegations of a complaint.

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3 Courts in other districts have reached divergent conclusions as to whether Kohler’s “fair notice” standard

25 or the Twombly/Iqbal standard applies to the pleading of affirmative defenses. Cf. Cota v. Avenda Corp., No. 3:20-

cv-01137-BEN-BGS, 2020 WL 6083423, at *3-4 (S.D. Cal. Oct. 14, 2020) (collecting cases and noting “[t]he

26 Southern District follows the Ninth Circuit’s decision in Kohler”) with United States v. Academy Mortgage Corp.,

No. 16-cv-02120-EMC, 2020 WL 7056017, at *2 (N.D. Cal. Dec. 2, 2020) (collecting cases and noting “[o]nly two

27 courts in this district have applied the lower ‘general terms’ standard from Kohler,” and concluding “[t]here are

strong policy reasons for requiring parties to meet the pleading standard set forth in Twombly and Iqbal for

1 Doc. 26 at 6.) The undersigned previously found this affirmative defense adequate:

2 First Affirmative Defense

3 This defense alleges Defendant acted “within the scope of discretion,

with due care, and with good faith ….” The undersigned finds the

4 first affirmative defense puts Plaintiff on fair notice that Defendant

Lopez will argue the alleged wrongful conduct constituted an

5 exercise of discretion, carried out with due care and in good faith.

See Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D. Cal. 2013)

6 (“ample case law describes the scope of these defenses, and at this

point in the litigation, the Individual Defendants need not elaborate

7 further”); Kaur v. City of Lodi, No. 2:14-cv-00828-TLN-AC, 2016

WL 627308, at *3 (E.D. Cal. Feb. 17, 2016) (denying motion to

8 strike good faith affirmative defense and noting federal courts’

reluctance “to determine disputed or substantial issues of law [such

9 as a discretionary versus non-discretionary functions] on a motion to

strike”).

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Further, it is well established that qualified immunity is an

11 affirmative defense, and one that does not require additional facts to

be sufficiently plead. Crawford-El v. Britton, 523 U.S. 574, 587

12 (1998); L.F. v. City of Stockton, No. 2:17-cv-01648-KJM-DB, 2018

WL 3817558, at *7 (E.D. Cal. Aug. 9, 2018) (stating that “qualified

13 immunity is sufficiently pleaded without additional factual bases”)

(citing Kaur, 2016 WL 627308, at *3). The assertion of this

14 affirmative defense puts Plaintiff on notice that Defendant intends to

argue that the alleged wrongful conduct constituted an exercise of

15 discretion and was carried out in good faith. Further, the undersigned

finds that a motion to strike “is not a good fit for resolving issues like

16 [q]ualified [i]mmunity which often turn on facts yet to be

developed.” Atkins v. Pickard, 298 F. App'x 512, 513 (7th Cir. 2008);

17 Mollica v. Cnty. of Sacramento, No. 2:19-CV-02017-KJM-DB, 2021

WL 2853863, at *2 (E.D. Cal. July 8, 2021) (“This defense gives

18 adequate notice of the individual defendants’ intent to argue they are

entitled to qualified immunity against claims under § 1983, a

19 commonly litigated and well-understood affirmative defense”).

Thus, the Court will recommend Plaintiff's motion to strike the first

20 affirmative defense be denied.

21 (Doc. 38 at 5-6.)

22 In the instant motion, Plaintiff contends Defendant provided “no direct evidence of

23 Plaintiff’s Barred [sic] and has provided no information about how Plaintiff’s claim is barred.”

24 (Doc. 42 at 4.) Plaintiff also contends that because qualified immunity “is a well-known defense,

25 pleading the defense alone put plaintiff on notice, but Defendant went overboard by claiming

26 Plaintiff’s claim is barred, which diminish the defense alone put Plaintiff on notice.” (Id.) Plaintiff

27 maintains that while fair notice if a low bar, Defendant is required to provide some factual basis.

] But, as Defendant correctly points out, the presiding district judge adopted the earlier

2 | findings in full, meaning she determined after de novo review that the first affirmative defense

3 | survived Plaintiffs earlier challenge. The undersigned finds that Plaintiffs nearly identical

4 | challenge, merely parsing the language of the affirmative defense, selecting the word “barred,”

5 | and attempting to create a new argument or issue, is improper. The Court’s earlier analysis

6 || remains unchanged. As before, the undersigned will recommend Plaintiff's motion be denied

7 | concerning the first affirmative defense.

8 Hl. CONCLUSION AND RECOMMENDATION

9 Accordingly, for the reasons given above, the Court HEREBY RECOMMENDS that

10 | Plaintiffs motion to strike Defendant’s first affirmative defense (Doc. 42) be DENIED.

11 These Findings and Recommendations will be submitted to the United States District

12 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days

13 | after being served with a copy of these Findings and Recommendations, a party may file written

14 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to

15 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without

16 | leave of Court and good cause shown. The Court will not consider exhibits attached to the

17 || Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the

18 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise

19 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be

20 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28

21 | U.S.C. § 636(b)(1)(C).

22 A party’s failure to file any objections within the specified time may result in the waiver

23 | of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

24 | ITIS SO ORDERED.

| Dated: _ June 15, 2026 | by

26 UNITED STATES MAGISTRATE JUDGE

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