United States District Court, E.D. Washington
ORDER STRIKING DEFENDANTS' FIRST, SECOND, FOURTH,
AND FIFTH AFFIRMATIVE DEFENSES
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE.
THE COURT is Plaintiff's Partial Motion to Dismiss
Defendants' Affirmative Defenses, ECF No. 20. Plaintiff
moves to dismiss Defendants' first, second, fourth, and
fifth affirmative defenses. See ECF No. 20. The
Court has reviewed the pleadings and the record, and is fully
Red Lion Hotels Franchising, Inc., brings this breach of
contract suit against Defendants to recover amounts under
three contracts of guaranty for payments allegedly owed by
three entities under franchise license agreements
(“FLAs”) made with Plaintiff. ECF No. 1.
Plaintiff alleges that the three franchise entities in
question are in default of amounts owed to Plaintiff under
their FLAs. Id. Plaintiff alleges that Defendant
First Capital Real Estate Investments, LLC, is the managing
member of the three franchise entities. Id., ¶
3.3. Plaintiff further alleges that the named Defendants, as
the principals behind the franchise entities, signed the
guaranty contracts that Plaintiff alleges have been breached.
Id., ¶ 3.5.
Court has subject matter jurisdiction over this matter
pursuant 28 U.S.C. § 1332 based on the diversity of the
parties and the amount in controversy. Plaintiff is a
corporation licensed in Washington. ECF No. 1, ¶ 1.1.
Defendant First Capital Real Estate Investments, LLC, is a
foreign limited liability company. Id., ¶ 1.2.
Defendants Suneet Singal and Majique Ladnier reside in
California. Id., ¶ 1.3. The amount in
controversy is $1, 265, 220.53, which exceeds the statutory
requirement of $75, 000. Id., ¶¶ 4.6,
motion to dismiss several of Defendants' affirmative
defenses, Plaintiff argues that four of the five asserted
affirmatives defenses are not legally sustainable. ECF No. 20
at 5. Plaintiff brings this motion pursuant to Federal Rule
of Civil Procedure 12(c), a motion for judgment on the
pleadings. See Id. at 9.
Court notes that a plaintiff's motion for judgment on the
pleadings shall not be granted unless all of the
defenses raised in the answer are legally
insufficient.” Burns v. Consol. Amusement Co.,
182 F.R.D. 609, 611 (D. Haw. 1998) (emphasis in original)
(citing Fed.R.Civ.P. 12(c)). Instead, “if one or more
of the defenses are viable, plaintiff's motion should be
brought as a motion to strike within  days after service
of the answer.” Id. (citing Fed.R.Civ.P.
12(f)). The court may also act on its own to strike from a
pleading an insufficient defense. Fed.R.Civ.P. 12(f).
does not argue that all of Defendants' affirmative
defenses are insufficient as a matter of law. Therefore, the
Court will construe Plaintiff's motion as a motion to
strike Defendants' first, second, fourth, and fifth
affirmative defenses pursuant to Fed.R.Civ.P. 12(f).
filed their answer on May 19, 2017. See ECF No. 9.
Plaintiff filed its motion for dismissal of Defendants'
affirmative defenses, which the Court construes as a motion
to strike, on February 20, 2018. See ECF No. 20. To
comply with Rule 12(f), Plaintiff needed to file its motion
by June 9, 2017. See Fed. R. Civ. P. 12(f).
Plaintiff delayed eight months in filing its motion.
Defendants also did not respond timely to Plaintiff's
motion. According to LR 7.1(b), counsel in a civil case has
21 days after the filing of a dispositive motion to file a
response. “The failure to comply with the requirements
of LR 7.1(a) or (b) may be deemed consent to the entry of an
Order adverse to the party who violates these rules.”
both parties have failed to follow the relevant procedural
rules, Fed.R.Civ.P. 12(f) authorizes the Court to act on its
own to strike from a pleading an insufficient defense.
Standard for Striking Affirmative Defense
Rule of Civil Procedure 12(f) provides that “[t]he
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” A defense may include both denials and
affirmative defenses. Defense, Black's Law
Dictionary (10th ed. 2014); see also Fed. R. Civ. P.
8. A responding party must make general or specific denials
to the substance of the allegations asserted against it by an
opposing party. Fed.R.Civ.P. 8(b). A responding party also
“must affirmatively state any avoidance or affirmative
defense.” Fed.R.Civ.P. 8(c).
Rule of Civil Procedure 8(c) defines whether the procedural
pleading of an affirmative defense is
“sufficient.” Wyshak v. City Nat'l
Bank, 607 F.2d 824, 827 (9th Cir. 1979). Rule 8(b)
requires a party responding to a pleading to “state in
short and plain terms its defenses to each claim asserted
against it.” Fed.R.Civ.P. 8(b)(1)(A). Rule 8(c) states
that “a party must affirmatively state any avoidance or
affirmative defense, ” including such defenses as
laches and violations of a statute of limitations.
Fed.R.Civ.P. 8(c). “Of course, affirmative defenses,
like all pleadings, must also satisfy Rule 11.” In
re Washington Mut., Inc. Secs., Derivative & ERISA
Litig., 08-MD-1919 MJP, 2011 WL 1158387, at *1 (W.D.
Wash. Mar. 25, 2011) (striking certain affirmative defenses).
Federal Rule of Civil Procedure 11 requires all pleadings to