United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION
TO STRIKE AFFIRMATIVE DEFENSES (DOC. 11)
COHN UNITED STATES DISTRICT JUDGE
a contract case. Plaintiff and defendant are a subcontractor
and a contractor on a construction project for remodeling a
building for the Veterans Affairs in Battle Creek, Michigan.
Plaintiff designed and supplied a boiler for installation by
defendant. Plaintiff says it performed its obligations and
defendant has refused to make the final payment on the
bolier. Defendant essentially says that the boiler is
defective. Before the Court is plaintiff's motion under
Fed.R.Civ.P. 12(f) to strike defendant's first, second,
fifth, sixth, seventh, and eighth affirmative
defenses. For the reasons that follow, the motion is
Fed.R.Civ.P. 12(f) of the Federal Rules of Civil Procedure,
“[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). An affirmative
defense is insufficient where “as a matter of law, the
defense cannot succeed under any circumstances.”
Specialized Pharm. Servs., LLC v. Magnum Health &
Rehab of Adrian, LLC, No. 12-12785, 2013 WL 1431722, at
*5-6 (E.D. Mich. Apr. 9, 2013).
“is a drastic remedy” that “should be
sparingly used by the courts.” Brown &
Williamson Tobacco Corp. v. United States, 201 F.2d 819,
822 (6th Cir.1953). “The motion to strike should be
granted only when the pleading to be stricken has no possible
relation to the controversy.” Id. Ultimately,
the decision to strike a pleading is firmly within the
discretion of the court.” Spizizen v. Nat'l
City Corp., No. 09-11713, 2010 WL 419993, at *2 (E.D.
Mich. Feb.1, 2010) (citation omitted).
initial matter, plaintiff argues that the affirmative
defenses fail to meet the general pleading requirements under
Fed.R.Civ.P. 8 as well as the requirements of
Twombly and Iqbal. The Sixth Circuit
has not yet determined whether the heightened pleading
standard under Twombly and Iqbal also
applies to affirmative defenses. District courts in this
district are divided over the issue. Compare, e.g.,
Vision Info. Techs., Inc. v. Vision IT Servs. USA, Inc.,
156 F.Supp.3d 870, 877 (E.D. Mich. 2016) and Rehab Sols.,
Inc. v. St. James Nursing & Physical rehab. Ctr.,
Inc., 2014 WL 6750590 (E.D. Mich. Dec. 1, 2014)
(applying Twombly and Iqbal standard to
affirmative defenses) with Exclusively Cats Veterinary
Hosp., P.C. v. Pharm. Credit Corp., 2014 WL 4715532
(E.D. Mich. Sept. 22, 2014) and Int'l Outdoor, Inc.
v. City of Southgate, No. 11-14719, 2012 WL 2367160, at
*7-9 (E.D. Mich. Apr. 6, 2012) (declining to apply
Twombly and Iqbal to affirmative defenses).
at the divergent authority, the better view is that
Twombly and Iqbal do not apply to
affirmative defenses. The district court in Exclusively
Cats persuasively explained:
. . . Defendant cites Lawrence v. Chabot, a case
decided before Twombly and Iqbal, in which
the Sixth Circuit upheld a magistrate judge's refusal to
strike affirmative defenses under the fair notice standard.
182 F.App'x 442, 456-57 (6th Cir.2006) (“An
affirmative defense may be pleaded in general terms and will
be held to be sufficient ... as long as it gives plaintiff
fair notice of the nature of the defense”). In this
regard, the Sixth Circuit (again pre-Twombly and
Iqbal) has held the affirmative defense
“Plaintiffs' claims are barred by the doctrine of
res judicata” sufficient under Rule 8(c). Davis v.
Sun Oil Co., 148 F.3d 606, 612 (6th Cir.1998). . . .
Another Sixth Circuit case, Montgomery v. Wyeth, 580
F.3d 455, 467-68 (6th Cir.2009), lends support to
defendant's position. In Montgomery, decided
after both Twombly and Iqbal, the court
held that “[t]he Federal Rules of Civil Procedure do
not require a heightened pleading standard for a statute of
repose defense.” Montgomery, 580 F.3d at 468.
The court went on to cite Rule 8(b)(1)'s requirement that
a party “state in short and plain terms its defenses to
each claim, ” as well as the fair notice standard in
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957). Montgomery, 580 F.3d at 468.
. . . .
Courts declining to apply the heightened pleading standard to
affirmative defenses have tended to focus on the difference
in language of Rules 8(a) and 8(b), or on the fact that the
holdings in Twombly and Iqbal were limited
to Rule 8(a). As to language, Rule 8(a) requires a
“short and plain statement of the claim showing the
pleader is entitled to relief” (emphasis added), while
Rule 8(b) only requires a statement “in short and plain
terms” of “defenses to each claim.” See
Iqbal, 556 U.S. at 679 (stating that “where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief” (internal quotation marks omitted)). Moreover,
as at least one other decision in this district has pointed