United States District Court, W.D. Washington. Seattle
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on Plaintiffs Mistelle and
Timothy Hargrove's Motion to Strike Affirmative Defenses.
Dkt. # 14. For the following reasons, the Court GRANTS in
part and DENIES in part Plaintiffs' motion.
a personal injury action arising from a motor vehicle
accident, which occurred on November 14, 2014. Dkt. # 9
(Amended Complaint). Plaintiffs allege they were driving
westbound on Interstate 84 when a tractor trailer in front of
them jack-knifed across both lanes of the highway, causing
them to collide with the tractor trailer. Id.
Plaintiffs allege Defendant Timothy Hargrove was the driver
of the tractor trailer and that he was on duty as an employee
of Defendant Odessa Transport, Inc. at the time of the
accident. Id. Plaintiffs allege that Hargrove caused
the accident by driving negligently. Id. Plaintiffs
filed this action against Hargrove and his employer to
recover the damages allegedly caused by the accident.
December 13, 2016, Defendants filed an answer to
Plaintiffs' amended complaint. Dkt. # 10 (Answer). In
their answer, Defendants assert affirmative defenses. In the
instant motion, Plaintiffs request that the Court strike
these defenses. Dkt. # 14.
purpose of an affirmative defense “is to put ‘the
plaintiff on notice that matters extraneous to his prima
facie case are in issue.'” United States v.
Ctr. for Diagnostic Imaging, Inc., No. C05-0058RSL, 2011
WL 6300174, at *2 (W.D. Wash. Dec. 16, 2011) (quoting
Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp.
259, 262 (E.D.Cal.1987)). “The key to determining the
sufficiency of pleading an affirmative defense is whether it
gives plaintiff fair notice of the defense.” Wyshak
v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979).
“Factually speaking, courts in this district have
generally interpreted ‘fair notice' to require
something far less than the specificity required of a
complaint under Twombly and Iqbal.”
Ctr. for Diagnostic Imaging, Inc., No. C05-0058RSL,
2011 WL 6300174, at *2. Rule 12(f) permits the Court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12. “Courts generally
decline to strike affirmative defenses unless the moving
party shows ‘there are no questions of fact, that any
questions of law are clear and not in dispute, and that under
no set of circumstances could the defense
succeed.'” Manning v. Swedish Med. Ctr.,
No. C15-0949JLR, 2015 WL 12696168, at *1 (W.D. Wash. Sept.
23, 2015) (quoting Kerzman v. NCH Corp., No.
C05-1820-JLR, 2007 WL 765202, at *7 (W.D. Wash. March 9,
request that the Court strike the following affirmative
defenses asserted by Defendants: (1) failure to mitigate; (2)
setoff of damages; (3) failure to state a claim; (4) that
Plaintiffs' damages were caused by other incidents; (5)
that Plaintiffs' damages were caused by the negligence of
others; (6) that Defendants are entitled to a reduction of
any award to reflect compensation Plaintiffs have received
from collateral sources; (7) that Defendants are entitled to
a reduction of any award to reflect the difference between
amounts charged by medical providers and the amounts actually
paid; (8) failure to join indispensable parties; (9) statute
of limitations; (10) insufficient service of process; (11)
personal jurisdiction; and (12) reservation of additional
initial matter, Defendants have agreed to withdraw defenses
(9), (10), and (11). Accordingly, the Court GRANTS in part
Plaintiffs' motion to the extent they request that the
Court strike defenses (9), (10), and (11).
Court DENIES in part Plaintiffs' motion as to the
remaining affirmative defenses. Their arguments for striking
these defenses are conclusory and unpersuasive. Without
elaborating, they summarily contend that defenses (1), (2),
(4), (5), and (8) are unsupported by the facts. In a
similarly conclusory fashion, they contend that defenses (6)
and (7) are unlawful. Plaintiffs' arguments are
insufficient to carry their burden to show that “there
are no questions of fact, that any questions of law are clear
and not in dispute, and that under no set of circumstances
could the defense succeed.” Manning, No.
C15-0949JLR, 2015 WL 12696168, at *1.
separately contend that defense (3)-failure to state a
claim-is not an affirmative defense, but rather, a Rule 12(b)
argument. While they are correct, this is not a basis to
strike under Rule 12(f). In re Washington Mut., Inc.
Sec., Derivative & ERISA Litig., No. 08-MD-1919 MJP,
2011 WL 1158387, at *2 (W.D. Wash. Mar. 25, 2011)
(“Affirmative Defenses 1, 2, 3, and 17 are simply Rule
12(b) attacks to the adequacy of the pleadings, not
avoidances or affirmative defenses. . . . The Court will
simply consider them not as affirmative defenses, but as
general denials or objections.”).
Plaintiffs contend that (12)-reservation of additional
defenses-is not a valid defense. Again, Plaintiffs are
correct, but not in a manner that requires any action by the
Court. Id. (“Though this is not an affirmative
defense, the Court does not strike it. In order to pursue an
affirmative defense not specifically pleaded, ...