United States District Court, E.D. Michigan, Southern Division
AMENDED OPINION AND ORDER GRANTING IN PART AND
DENYING INPART PLAINTIFFS' MOTION TO STRIKE AFFIRMATIVE
DEFENSES OF GALLAGHER BASSET SERVICES [#47]
Gershwin A. Drain United States District Court Judge.
before the Court is Plaintiffs' Motion to Strike
Affirmative Defenses of Gallagher Basset Services. Dkt. No.
47. Plaintiffs filed their complaint against Defendants on
September 20, 2017. Dkt. No. 1. On February 1, 2018,
Defendant Gallagher Basset Services, Inc., filed an answer to
the complaint asserting affirmative defenses. Dkt. No. 42. On
February 14, 2018, Plaintiffs filed a Motion to Strike
Affirmative Defenses. Dkt. No. 47. Defendant responded to the
Motion on February 28, 2018. Dkt. No. 48. Plaintiffs filed
their reply on March 14, 2018. Dkt. No. 51.
Rule of Civil Procedure 12(f) governs motions to strike.
Under the rule, courts may strike “an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). The Sixth
Circuit holds that striking a pleading is a “drastic
remedy” that should only occur “when the pleading
to be stricken has no possible relation to the
controversy.” Brown & Williamson Tobacco Corp.
v. U.S., 201 F.2d 819, 822 (6th Cir. 1953); see also
Anderson v. U.S., 39 Fed.App'x 132, 135 (6th Cir.
2002); Hemlock Semiconductor Corp. v. Deutsche Solar
GmbH, 116 F.Supp.3d 818, 823 (E.D. Mich. 2015).
move to strike all of Defendant's affirmative defenses.
This Court will strike affirmative defenses 1, 3, 12, and 13.
These defenses are:
1. Plaintiffs' Complaint fails to state a claim against
GBS upon which relief can be granted.
3. Discovery may disclose that Plaintiffs failed to join
necessary one or more necessary parties responsible in whole
or in part for Plaintiffs' alleged damages.
12. There is no privity of contract between Plaintiffs and
GBS, and thus there can be no claim against GBS for breach of
13. There was no enforceable contract between Plaintiffs and
GBS. There was no bargained for exchange, no consideration,
and no offer and acceptance.
Dkt. No. 42, pg. 6-8 (Pg. ID 559-61).
January 19, 2018, this Court ruled that Plaintiff's
complaint against Gallagher was sufficient to survive
Defendant's motion to dismiss. Dkt. No. 31. Therefore,
Plaintiff's complaint does state a claim upon which
relief can be granted. Defendant also agreed and withdrew
affirmative defense 1. Dkt. No. 48, pg. 15 (Pg. ID 635).
Defendant also withdrew its affirmative defense 3.
Id. The Court will also strike affirmative defenses
12 and 13. The complaint in this case does not involve a
contract; it is a slip and fall case. Plaintiffs do not
allege that there was a valid contract between themselves and
Defendant. Therefore, affirmative defenses 12 and 13 are
conclusion, the Court holds that affirmative defenses 1, 12,
and 13 are immaterial to this case, and defendant voluntarily
withdrew affirmative defense 3. ...