United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION TO STRIKE
UW'S AFFIRMATIVE DEFENSES
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court is Defendant David Daleiden's motion to strike
Defendant and Crossclaim Defendant University of
Washington's (“UW”) affirmative defenses to
the crossclaim. (Mot. (Dkt. # 171).) The court has reviewed
the motion, the submissions the parties filed in support of
and opposition to the motion, the other relevant portions of
the record, and the applicable law. Being fully advised,
court DENIES the motion.
case arises out of written requests Mr. Daleiden sent to UW
under the Washington Public Records Act (“PRA”),
RCW ch. 42.56. (TAC (Dkt. # 77) at 1-2.) On August 3, 2016,
Plaintiffs Jane Does 1-10 and John Does 1-10 (collectively,
“Doe Plaintiffs”) sued UW and Mr. Daleiden to
prevent UW from releasing documents responsive to Mr.
Daleiden's PRA requests without first redacting certain
information.(See generally Compl. (Dkt. # 1).)
August 15, 2016, Mr. Daleiden filed a motion to dismiss
arguing that UW, as an arm of Washington State, was immune
from suit, and that if the court were to dismiss UW, it
should dismiss Mr. Daleiden too. (See MTD (Dkt. #
49).) In response, UW stated that it consented to
jurisdiction for purposes of Doe Plaintiffs' claims for
declaratory and injunctive relief. (UW MTD Resp. (Dkt # 71)
on its response to Mr. Daleiden's motion, the court found
that UW waived its Eleventh Amendment immunity to the
equitable claims raised by Doe Plaintiffs, but the court
found a lack of subject matter jurisdiction on other grounds.
(10/4/16 Order (Dkt. # 76) at 8-14.) The court granted Doe
Plaintiffs leave to amend (id. at 14-18), and they
subsequently filed a third amended complaint in which they
added Defendant Perry Tapper (see TAC¶ 12). In
March 2018, UW, Mr. Tapper, and Mr. Daleiden answered Doe
Plaintiffs' third amended complaint. (See UW
Ans. (Dkt. # 157); Daleiden Ans. (Dkt. # 158).) In his
answer, Mr. Daleiden asserted crossclaims against UW.
(Daleiden Ans. at 7-10.) Unlike Doe Plaintiffs' equitable
claims against UW, Mr. Daleiden's crossclaims seek
statutory penalties, attorney's fees, and costs.
(Id. at 10.)
March 26, 2018, UW answered Mr. Daleiden's crossclaims.
(UW Ans. to CC (Dkt. # 163).) UW asserted three affirmative
defenses: (1) failure to state a claim for which relief can
be granted, (2) lack of subject matter jurisdiction, and (3)
Eleventh Amendment immunity. (Id. at 4.) On April
16, 2018, Mr. Daleiden moved to strike these affirmative
defenses based on Federal Rule of Civil Procedure 12(f).
(See Mot. at 1 (citing Fed.R.Civ.P. 12(f)).) The
court now considers Mr. Daleiden's motion.
Rule of Civil Procedure 12(f) provides that a court may, on
its own or on a motion, “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
The court may only strike material from a pleading if it
falls within one of those five categories. Whittlestone,
Inc. v. Handi-Craft Co., 618 F.3d 970, 973-74 (9th Cir.
Daleiden argues that the court should strike UW's
affirmative defenses of “failure to state a claim upon
which relief can be granted” and “lack of subject
matter jurisdiction” because they fail to give him
“fair notice” of the “specifics” of
these two defenses. (See Mot. at 2.) The Ninth
Circuit, however, recently held that “the ‘fair
notice' required by the pleading standards only requires
describing . . . [an affirmative] defense in ‘general
terms.'” Kohler v. Flava Enters., Inc.,
779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice &
Procedure § 1274 (3d ed.1998)). In so holding, the
Ninth Circuit implicitly declined to apply the
Iqbal/Twombly plausibility standard to the
pleading of affirmative defenses. See Walker v. Charter
Commc'ns Inc., No. 3:15-cv-00556-RCJ-VPC, 2016 WL
3563483, at *3 (D. Nev. 2016) (finding no reason to alter its
position that the Iqbal standard does not apply to
affirmative defenses); Fed. Trade Comm'n v. Vemma
Nutrition Co., No. CV-15-01578-PHX-JJT, 2016 WL 3548762,
at *1 (D. Ariz. 2016) (concluding that the Twombly
standard does not apply to affirmative defenses). The court
therefore denies Mr. Daleiden's motion to strike because
UW sufficiently describes its affirmative defenses in
“general terms.” See Kohler, 779 F.3d at
addition, UW may raise lack of subject matter jurisdiction at
any point during the proceedings. See Fed. R. Civ.
P. 12(h)(3). As a practical matter, striking this affirmative
defense only to later permit Doe Plaintiffs to raise it
wastes judicial resources. Further, Mr. Daleiden has not
demonstrated that he will suffer any prejudice. Hernandez
v. Balakian, No. CVF06-1383OWW/DLB, 2007 WL 1649911, at
*1 (E.D. Cal. June 1, 2007) (quoting 5C Charles Alan Wright
& Arthur R. Miller, Federal Practice &
Procedure § 1381 (3d ed. 1998)) (“Rule 12(f)
motions often are not granted in the absence of a showing of
prejudice to the moving party.”). Thus, the court also
denies Mr. Daleiden's motion to strike Doe
Plaintiffs' “lack of subject matter
jurisdiction” affirmative defense on this ground as
Daleiden also argues that “‘failure to state a
claim upon which relief can be granted' is not an
affirmative defense under [Federal Rule of Civil Procedure]
8(c).” (Mot. at 2 (citing Fed.R.Civ.P. 8(c)).) However,
Federal Rule of Civil Procedure 12(h)(2)(A) provides that a
party may raise “[f]ailure to state a claim upon which
relief may be granted . . . in any pleading allowed or
ordered under [Federal] Rule [of Civil Procedure]
7(a).” See Fed. R. Civ. P. 12(h)(2). One of
the pleadings allowed under Rule 7(a) is an answer to a
crossclaim. See Fed. R. Civ. P. 7(a)(4); see
also Valley Cmty. Bank v. Progressive Cas. Ins. Co., No.
5:11-CV-00574-JF HRL, 2011 WL 1833116, at *3 (N.D. Cal. May
13, 2011) (citing Hernandez, 2007 WL 1649911, at
*2). Thus, UW may raise this defense in its answer to Mr.
Daleiden's crossclaim. Accordingly, the court denies Mr.
Daleiden's motion on this additional ground.
(See UW Ans. to CC at 4.)
Mr. Daleiden argues that the court should strike UW's
“Eleventh Amendment immunity” affirmative defense
because UW has waived its immunity in this case. (Mot. at 2.)
However, UW expressly waived its Eleventh Amendment immunity
only “for purposes of considering the issues of
declaratory judgment and/or injunctive relief as raised by
Doe Plaintiffs.” (See UW MTD Resp. at 3.) UW
did not expressly waive its Eleventh Amendment immunity to
Mr. Daleiden's crossclaims for statutory penalties, fees,
and costs. (See Resp. (Dkt. # 174) at 9.) Without
ruling on the issue, the court notes that there is at least
out-of-circuit authority for the position that a party may
partially waive its Eleventh Amendment immunity in certain
circumstances. See Hankinsv. Finnel, 964
F.2d 853, 856 (8th Cir. 1992) (providing that an Eleventh
Amendment waiver may be partial or limited) (citing WJM,
Inc. v. Mass. Dep't of Pub. Welfare, 840 F.2d 996,
1002-03 & n.8 (1st Cir. 1988), abrogated on other
grounds by Reoppel v. Massachusetts, 936 ...