A.

Motion to Strike Affirmative Defenses

1. Standard for Motion to Strike Under Rule 12(f)
Affirmative defenses are governed by the same pleading standard as complaints. Rule 8(b)
provides, "[a] party shall state in short and plain terms the party's defenses to each claim asserted..."
Like complaints, affirmative defenses must give plaintiff "fair notice" of the defense being advanced.
Wyshak, 607 F.2d at 827. [1] Cf. Wyshak v. City Nat. Bank, 607 F.2d 824 (9th Cir.1979) (bare reference to "applicable
statute of limitations" in answer is sufficient when supported by memorandum outlining argument and citing specific statute).

Wyshak v. City Nat. Bank, 607 F. 2d 824 - Court of Appeals, 9th Circuit 1979

A reference to a doctrine, like a reference to statutory provisions, is insufficient notice. See Scimed
Sys., 1996 WL 467277, at *3, 1996 U.S. Dist. LEXIS 11702, at *7-*8 ("Defendant's general reference
to a series of statutory provisions [35 U.S.C. § 1 et seq.] does not provide plaintiff with fair notice of
the basis of this defense"). Furthermore, eHelp's affirmative defenses do not set forth the elements
of the defense. Qarbon. com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046 - Dist. Court, ND California 2004

In an affirmative defense, the defendant affirms that the condition is occurring or has occurred
but offers a defense that bars, or prevents, the plaintiff's claim. An affirmative defense is known,
alternatively, as a justification, or an excuse, defense.[2] Consequently, affirmative defenses limit
or excuse a defendant's criminal culpability or civil liability.[citation needed]

Rule 11 of the Federal Rules of Civil Procedure requires that affirmative defenses be based on
"knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances," and cannot consist of a laundry list of all known affirmative defenses.[7]

Rule 11 requires all papers to be signed by the attorney (if party is represented). It also provides
for sanctions against the attorney or client for harassment, frivolous arguments, or a lack of
factual investigation.

All defenses, supporting facts, and "new matters" constituting a defense must be included in the
Answer (Code of Civil Procedure §431.30(b)(2)). If you do not raise a particular defense in your
Answer, you will be prohibited from using or raising it later on (see Ekstrom v. Marquesa at
Monarch Beach Homeowners Ass'n, 168 Cal. App. 4th 1111 (2008) (available online at
http://tinyurl.com/Ekstrom-v-Marquesa)).

application of twombly to affirmative defenses

The Supreme Court’s reinterpretation of F.R.C.P. 8 in Bell Atlantic Corp v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) revolutionized pleading practice and
created a tsunami of case law concerning the level of specificity required in complaints. But,
plaintiff’s counsel are not the only lawyers having to rethink pleading practice in the wake of
Twombly and Iqbal — defense counsel are also scrambling. The number of motions brought to
strike affirmative defenses under F.R.C.P 12(f) for being “insufficient” appears to be rising
dramatically over the last four years and, since 2007, there have been no fewer than 80 district
court decisions offering up conflicting conclusions to this question: do the higher pleading
standards of Twombly apply to affirmative defenses, or only complaints?*

A Court may strike affirmative defenses under Federal Rule of Civil Procedure 12(f) if they present
an "insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Fed.
R.Civ.P. 12(f). The purposes of a Rule 12(f) motion is to avoid spending time and money litigating
spurious issues. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on other
grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). A defense is insufficiently pled if it
fails to give the plaintiff fair notice of the nature of the defense. See Wyshak v. City Nat'l Bank, 607
F.2d 824, 827 (9th Cir.1979). A matter is immaterial if it has no essential or important relationship to
the claim for relief pleaded. See Fogerty, 984 F.2d at 1527. A matter is impertinent if it does not
pertain and is not necessary to the issues in question in the case. See id. Barnes v. AT & T PENSION
BEN. PLAN, 718 F. Supp. 2d 1167 - Dist. Court, ND California 2010

Since 2009, courts have been left to decide whether Twombly and Iqbal apply to the pleading of
affirmative defenses. While neither the Ninth Circuit nor any other Circuit Courts of Appeals has
ruled on this issue, the vast majority of courts presented with the issue have extended Twombly's
heightened pleading standard to affirmative defenses. See CTF Dev., 1172*1172 Inc. v. Penta
Hospitality, LLC, No. C 09-02429, 2009 WL 3517617, at *7-8 (N.D.Cal. Oct. 26, 2009) (Alsup, J.)
("Under the Iqbal standard, the burden is on the defendant to proffer sufficient facts and law to
support an affirmative defense"); see also Hayne, 263 F.R.D. at 650 n. 15 (citing nine cases applying
Twombly and Iqbal to the pleading of affirmative defenses). Only a few district courts have reached
the contrary conclusion. See, e.g., First Nat'l Ins. Co. of Am. v. Camps Servs., Ltd, No. 08-cv-12805,
2009 WL 22861, at *2 (E.D.Mich. Jan. 5, 2009) (finding Twombly's analysis of the "short and plain
statement" requirement inapplicable to affirmative defenses); Romantine v. CH2M Hill Eng'rs, Inc.,
No. 09-973, 2009 WL 3417469, at *1 (W.D.Pa. Oct. 23, 2009) (declining to apply Twombly to either
affirmative or negative defenses).

The court finds the reasoning of the courts that have applied the heightened pleading standard
persuasive. Iqbal's extension of the Twombly pleading standard beyond claims arising under the
Sherman Act was premised on Twombly's holding that the purpose of Rule 8 was to give the
opposing party notice of the basis for the claim sought. See Iqbal, 129 S.Ct. at 1950-51. Rule 8's
requirements with respect to pleading defenses in an answer parallels the Rule's requirements for
pleading claims in a complaint. Compare (a)(2) "a short and plain statement of the claim showing
that the pleader is entitled to relief", with (b)(1) "state in short and plain terms its defenses to each
claim asserted against it". Rule 8(b)(2) further provides with respect to "denials" that they "must fairly
respond to the substance of the allegations." The court can see no reason why the same principles
applied to pleading claims should not apply to the pleading of affirmative defenses which are also
governed by Rule 8. "Applying the standard for heightened pleading to affirmative defenses serves a
valid purpose in requiring at least some valid factual basis for pleading an affirmative defense and
not adding it to the case simply upon some conjecture that it may somehow apply." Hayne, 263
F.R.D. at 650; see also CTF Dev., Inc., 2009 WL 3517617, at *7-8. Applying the same standard will
also serve to weed out the boilerplate listing of affirmative defenses which is commonplace in most
defendants' pleadings where many of the defenses alleged are irrelevant to the claims asserted.

AT & T alleges that Barnes and the class members which he represents are either completely or
partially bared from recovery because of the existence of an affirmative defense. However, in none
of its twenty-four affirmative defenses does AT & T point to the existence of some identifiable fact
that if applicable to Barnes or another class member would make the affirmative defense plausible
on its face. Instead, AT & T simply lists a series of conclusory statements asserting the existence of
an affirmative defense without stating a reason why that affirmative defense might exist. In particular,
in the fourth (statute of limitations), fifth (failure to comply with internal deadlines), sixth (laches),
seventh (estoppel), eighth (waiver), ninth (unclean hands), tenth (mootness), eleventh (lack of
standing), twelfth (damages reduced by earning, benefits, and/or income), fifteenth (performance
was excused due to conduct of plaintiff), twentieth (exhaustion), twenty-first (waiver of right to future
benefits), and twenty-fourth (unjust enrichment) affirmatives defenses, AT & T fails to provide any
facts, instead, just alleging that the affirmative defense exists. Ans. ¶¶ 149-153, 155-56, 165, 169.

Failure to state a claim is not a proper affirmative defense but, rather, asserts a defect in Barnes'
prima facie case.

Barnes v. AT & T PENSION BEN. PLAN, 718 F. Supp. 2d 1167 - Dist. Court, ND California 2010

Rule 12(f) of the Federal Rules of Civil Procedure provides:

(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these rules, upon motion made by a party within 20 days after
the service of the pleading upon the party or upon the court's own initiative at any time, the court
may order stricken from any pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.

FED. R. CIV. P. 12(f).

Motions to strike are disfavored and infrequently granted. Augustus v. Board of Public Instruction of
Escambia County, Florida, 306 F.2d 862, 868 (5th Cir.1962); Federal Deposit Insurance Corporation
v. Niblo, 821 F.Supp. 441, 449 (N.D.Tex.1993) (Cummings, J.) ("Both because striking a portion of a
pleading is a drastic remedy, and because it often is sought by the movant simply as a dilatory tactic,
motions under Rule 12(f) are viewed with disfavor and are infrequently granted."). [3] To succeed
768*768 on a motion to strike, the movant must show "that the allegations being challenged are so
unrelated to plaintiff's claims as to be unworthy of any consideration as a defense and that their
presence in the pleading throughout the proceeding will be prejudicial to the moving party." Niblo,
821 F.Supp. at 449 (addressing the standard in the context of a motion to strike defenses in an
answer). A court must deny a motion to strike a defense if there is any question of law or fact. Id. A
Rule 12(f) motion to strike a defense is proper, however, when the defense is insufficient as a matter
of law. Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057
(5th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983). The granting of a
motion to strike is within the discretion of the court. Niblo, 821 F.Supp. at 449.

2. The Affirmative Defenses

(a) Estoppel
In its second affirmative defense, C & W asserts that the United States' claims are barred by the
defense of estoppel. Answer at 17. According to C & W, the conduct of the United States, "including
the acts and omissions of the USPS, were willful, wanton, reckless, and rise to the level of gross
negligence."[4] Id. at 18. These acts and omissions include, among other things, the failure of the
USPS to inspect the mail received from the Presort Operation and the USPS' failure to stop the
illegal transfer of funds by Marcellino and Ebert. Id. The United States moves to strike this defense
on two grounds: (1) estoppel may not be asserted against the government where public money is at
stake; and (2) even if estoppel were available, C & W failed to plead and establish affirmative
government misconduct. Motion to Strike at 3-6; Reply to Strike at 1-6.

Plaintiff's original Answer to the Counterclaims [ECF No. 84] included twenty-one affirmative
defenses. After discussions between counsel, plaintiff voluntarily eliminated several. Plaintiff's
Amended Answer [ECF No. 88] advanced thirteen. Defendant's Motion to Strike [ECF No. 89] seeks
to eliminate six more: waiver (first affirmative defense); unclean hands (third affirmative defense);
laches (fourth affirmative defense); no actual injury (tenth affirmative defense); failure to mitigate
damages (eleventh affirmative defense); and failure to plead fraud with particularity pursuant to
RCFC 9(b) (thirteenth affirmative defense).

The Court first explained that "bare assertions. . . amount[ing] to nothing more than a `formulaic
recitation of the elements' of a constitutional discrimination claim," for the purposes of ruling on a
motion to dismiss, are not entitled to an assumption of truth. Id. at 1951 (quoting Twombly, 550 U.S.
at 555, 127 S.Ct. 1955). Such allegations are not to be discounted because they are "unrealistic or
nonsensical," but rather because they do nothing more than state a legal conclusion — even if that
conclusion is cast in the form of a factual allegation .. Moss v. US Secret Service, 572 F. 3d 962 - Court
of Appeals, 9th Circuit 2009

The Court held that these "bare assertions" "amount[ed] to nothing more than a `formulaic
recitation of the elements'" of the constitutional claim. Id. (quoting Twombly, 550 U.S. at 555, 127
S.Ct. 1955). Their "conclusory nature ... disentitle[d] them to the presumption of truth." Id. Starr v.
Baca, 652 F. 3d 1202 - Court of Appeals, 9th Circuit 2011

In determining whether to grant a motion to strike, a district court views the pleadings in a light most
favorable to the non-moving party, and "resolves any doubt as to the ... sufficiency of a defense in
defendant's favor." State of Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc. ("Alco Pac."),
217 F.Supp.2d 1028, 1033 (C.D.Cal.2002) (citing In re 2The-Mart.com Sec. Litig., 114 F.Supp.2d
955, 965 (C.D.Cal.2000); Wailua Assocs. v. Aetna Cas. and Sur. Co., 183 F.R.D. 550, 553-54
(D.Haw.1998)). Whether to grant a motion to strike is within the sound discretion of the district court.
Id. (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir.1993)). Mag Instrument, Inc. v. JS
Products, Inc., 595 F. Supp. 2d 1102 - Dist. Court, CD California 2008

Rule 8(b) of the Federal Rules of Civil Procedure requires a party to state "in short and plain terms
its defenses to each claim asserted against it." Fed. R.Civ.P. 8(b)(1). "The key to determining the
sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense."
Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979); see also 5 Charles Alan Wright and
Arthur R. Miller, Federal Practice and Procedure § 1274 (3d ed. 2004) ("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."). "`[F]air notice' does not require that the party `plead all the elements
of a prima facie case,'" unless the heightened pleading standard of Rule 9 applies. Smith v. Wal-
Mart Stores, 2006 WL 2711468, at *12 (N.D.Cal. Sept. 20, 2006) (quoting Wong v. United States,
373 F.3d 952, 969 (9th Cir.2004)). With respect to some defenses, "merely pleading the name of the
affirmative defense... may be sufficient." Woodfield v. Bowman, 193 F.3d 354, 361 (5th Cir.1999).

While in some cases, merely naming a particular defense will be sufficient to satisfy the notice
pleading standard, other affirmative defenses require greater specificity, including additional factual
allegations, in order to be properly pleaded. Smith, 2006 WL 2711468, at *8; compare Qarbon.com
Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1050 (N.D. Cal. 2004) (striking affirmative defenses of
waiver, estoppel and unclean hands for failure to allege factual basis) and Sun Microsystems, Inc. v.
Datram Corp., No. CIV. 96-20708 SW, 1997 WL 50272, at *4 (N.D. Cal. Feb. 4, 1997) (holding that a
plaintiff must plead each element of estoppel to survive a motion to strike) with SecuriMetrics, Inc. v.
Hartford Cas. Ins. Co., No. C 05-000917 CW, 2005 WL 2463749, at *6 (N.D. Cal. Oct. 4, 2005)
(denying motion to strike defense of third party where "Plaintiff does not establish that a third party`s
acts or omission could not possibly have contributed to Plaintiff`s alleged losses") and Ocean
Atlantic Woodland Corp. v. DRH Cambridge Homes, Inc., No. 02 C 2523, 2003 WL 1720073, at *8
(N.D. Ill. Mar. 31, 2003) (denying motion to strike waiver defense because it depended on questions
of fact). The key to the sufficiency of a defense is notice: if, in naming a defense, Plaintiff is put on
notice of Defendant`s intent to pursue such a defense, it is sufficiently pleaded. However, the mere
assertion of a broad category of legal theories, such as estoppel, with numerous possible
applications requires additional specificity to satisfy the notice pleading standard. Ganley v. COUNTY
OF MATEO, Dist. Court, ND California 2007