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Nexterra Systems Corp. v. Demaria Building Company, Inc.

United States District Court, E.D. Michigan, Southern Division

January 24, 2017




         I. Introduction

         This is 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.[2] For the reasons that follow, the motion is DENIED.

         II. Legal Standard

         Under 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).

         Striking “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).

         III. Discussion


         As an 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[3] and Iqbal.[4] 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).

         Looking 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 ...

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