1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, No. 1:20-cv-0909 NODJ GSA (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE 13 v. DEFENSES 14 J. JASSO, et al., (ECF No. 25) 15 Defendants. DEFENDANT’S AMENDED ANSWER RELATED TO AFFIRMATIVE DEFENSES 16 THREE AND SEVEN OR ALTERNATIVELY, STATEMENT 17 DECLINING TO AMEND DUE JANUARY 26, 2024 18
19 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 20 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 Before this Court is Plaintiff’s motion to strike Defendant’s affirmative defenses. ECF 23 No. 25. Defendant has filed an opposition to it (see ECF No. 26), and the period within which 24 Plaintiff could have filed a reply has expired (see Local Rule 230(l)). Thus, the matter is deemed 25 fully briefed and submitted. 26 For the reasons stated below, Plaintiff’s motion to strike Defendant’s affirmative defenses 27 will be denied. However, in accord with Defendant’s stipulations, affirmative defenses Three and 28 1 Seven will be stricken. As a result, Defendant will be given the opportunity to amend the answer 2 with respect to those two defenses if Defendant so chooses. 3 I. MOTION TO STRIKE AFFIRMATIVE DEFENSES 4 A. Plaintiff’s Motion to Strike 5 In support of Plaintiff’s motion to strike Defendant’s affirmative defenses, Plaintiff argues 6 that a grant of the motion is in order with respect to Defendant’s first seven affirmative defenses 7 because they are incomplete, insufficiently pled, and/or are conclusory. See ECF No. 25 at 3-5. 8 Plaintiff argues that pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic 9 Corp. v. Twombly, 550 U.S. 544, 570 (2007), to support the defenses, Defendant was required to 10 plead facts which showed that her defenses were “plausible, not just possible.” ECF No. 25 at 2. 11 B. Defendant’s Opposition 12 In Defendant’s opposition to Plaintiff’s motion to strike, Defendant argues that the motion 13 should be denied because Plaintiff has applied the incorrect pleading standard to determine the 14 sufficiency of affirmative defenses. See generally ECF No. 26. Specifically, Defendant contends 15 that it is the “fair notice” pleading standard applied in Wyshak v. City Nat’l Bank, 607 F.2d 824, 16 827 (9th Cir 1979) and Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) that 17 should be used to determine whether an affirmative defense has been adequately pled; not the 18 heightened pleading standard under Federal Rule of Civil Procedure 8(a)(2) stated in Iqbal and 19 Twombly, which requires that complaints “contain sufficient factual matter, accepted as true to 20 state a claim for relief that is plausible on its [face].” ECF No. 26 at 2 (brackets added) (internal 21 quotation marks omitted). Neither Iqbal nor Twombly, Defendant contends, addressed the issue 22 of whether that heightened pleading standard applies to affirmative defenses that are raised under 23 Federal Rule of Civil Procedure 8(b). Id. 24 The fair notice standard, Defendant argues, is the one applied in the majority of Ninth 25 Circuit cases. ECF No. 26 at 2. Citing to Gomez v. J. Jacobo Farm Labor Contr., Inc., 188 F. 26 Supp. 3d 986, 992 (E.D. Cal. 2016), which standard only requires that a defendant state the nature 27 and grounds for an affirmative defense. See ECF No. 26 at 3. The Eastern District, Defendant 28 further contends, also interprets Kohler as standing for the proposition that Wyshak – not 1 Twombly and Iqbal, – provides the proper standard for determining the sufficiency of an 2 affirmative defense. Id. For these reasons, Defendant argues, the Court should apply the “fair 3 notice” standard when evaluating Plaintiff’s motion. Id. 4 Defendant continues, going on to state why all but two of her affirmative defenses One 5 through Seven have been sufficiently pled under the fair notice standard. See ECF No. 26 at 3-6. 6 In so doing, Defendant agrees to the striking of the Third and Seventh affirmative defenses. Id. at 7 4, 6. However, Defendant requests that the Court grant leave to amend the answer so that 8 Defendant can sufficiently rectify those defenses and/or any other deficiencies. See id. at 6. 9 C. Applicable Law 10 1. Twombly and Iqbal 11 In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court addressed the 12 question of what a plaintiff must plead in order to state a claim under the Sherman Act. See 13 Twombly, 550 U.S. at 554-55 (stating case presents antecedent question of what a plaintiff must 14 plead under Act and referencing Rule 8(a)(2) language). Ultimately, the Twombly Court 15 determined that the plaintiffs’ complaint was required to have “enough factual matter taken as 16 true to suggest that an agreement [had been] made.” Twombly, 550 U.S. at 556 (brackets added). 17 The high court further found that the plaintiffs’ complaint had not provided enough facts to state a 18 claim of relief that was plausible on its face; specifically, that they had not “nudged their claims 19 across the line from conceivable to plausible.” Id. at 570. As a result, the plaintiffs’ complaint 20 was dismissed. Id. 21 In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court also only addressed the 22 standard for respondents’ complaint, finding that under Rule 8(a)(2), pleadings are to contain a 23 “short and plain statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 24 U.S at 677-78. Citing to Twombly, the Iqbal Court also stated that the pleading standard under 25 Rule 8 did not require detailed factual allegations, but that it had to contain “sufficient factual 26 matter, accepted as true to, to state a claim for relief that is plausible on its face.” Id. at 678 27 (internal quotation marks omitted). 28 2. Wyshak and Kohler 1 In Wyshak v. City Nat’l Bank, 607 F.2d 824 (1979), the Ninth Circuit specifically 2 addressed the pleading standard needed when asserting an affirmative defense. At issue in the 3 case was whether the defendant’s statute of limitations defense had been sufficiently pled. See id. 4 at 826-27. The Wyshak Court first acknowledged that Rule 8(c) determined whether the pleading 5 of the affirmative defense was sufficient, and it went on to state that “[t]he key to determining the 6 sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the 7 defense.” Id. at 827 (brackets added) (citations omitted). 8 Sometime later, in Kohler v. Flava Enterprises, Inc., 779 F.3d 1016 (9th Cir. 2015), the 9 Ninth Circuit again applied the “fair notice” standard with respect to affirmative defenses.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, No. 1:20-cv-0909 NODJ GSA (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE 13 v. DEFENSES 14 J. JASSO, et al., (ECF No. 25) 15 Defendants. DEFENDANT’S AMENDED ANSWER RELATED TO AFFIRMATIVE DEFENSES 16 THREE AND SEVEN OR ALTERNATIVELY, STATEMENT 17 DECLINING TO AMEND DUE JANUARY 26, 2024 18
19 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 20 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 Before this Court is Plaintiff’s motion to strike Defendant’s affirmative defenses. ECF 23 No. 25. Defendant has filed an opposition to it (see ECF No. 26), and the period within which 24 Plaintiff could have filed a reply has expired (see Local Rule 230(l)). Thus, the matter is deemed 25 fully briefed and submitted. 26 For the reasons stated below, Plaintiff’s motion to strike Defendant’s affirmative defenses 27 will be denied. However, in accord with Defendant’s stipulations, affirmative defenses Three and 28 1 Seven will be stricken. As a result, Defendant will be given the opportunity to amend the answer 2 with respect to those two defenses if Defendant so chooses. 3 I. MOTION TO STRIKE AFFIRMATIVE DEFENSES 4 A. Plaintiff’s Motion to Strike 5 In support of Plaintiff’s motion to strike Defendant’s affirmative defenses, Plaintiff argues 6 that a grant of the motion is in order with respect to Defendant’s first seven affirmative defenses 7 because they are incomplete, insufficiently pled, and/or are conclusory. See ECF No. 25 at 3-5. 8 Plaintiff argues that pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic 9 Corp. v. Twombly, 550 U.S. 544, 570 (2007), to support the defenses, Defendant was required to 10 plead facts which showed that her defenses were “plausible, not just possible.” ECF No. 25 at 2. 11 B. Defendant’s Opposition 12 In Defendant’s opposition to Plaintiff’s motion to strike, Defendant argues that the motion 13 should be denied because Plaintiff has applied the incorrect pleading standard to determine the 14 sufficiency of affirmative defenses. See generally ECF No. 26. Specifically, Defendant contends 15 that it is the “fair notice” pleading standard applied in Wyshak v. City Nat’l Bank, 607 F.2d 824, 16 827 (9th Cir 1979) and Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) that 17 should be used to determine whether an affirmative defense has been adequately pled; not the 18 heightened pleading standard under Federal Rule of Civil Procedure 8(a)(2) stated in Iqbal and 19 Twombly, which requires that complaints “contain sufficient factual matter, accepted as true to 20 state a claim for relief that is plausible on its [face].” ECF No. 26 at 2 (brackets added) (internal 21 quotation marks omitted). Neither Iqbal nor Twombly, Defendant contends, addressed the issue 22 of whether that heightened pleading standard applies to affirmative defenses that are raised under 23 Federal Rule of Civil Procedure 8(b). Id. 24 The fair notice standard, Defendant argues, is the one applied in the majority of Ninth 25 Circuit cases. ECF No. 26 at 2. Citing to Gomez v. J. Jacobo Farm Labor Contr., Inc., 188 F. 26 Supp. 3d 986, 992 (E.D. Cal. 2016), which standard only requires that a defendant state the nature 27 and grounds for an affirmative defense. See ECF No. 26 at 3. The Eastern District, Defendant 28 further contends, also interprets Kohler as standing for the proposition that Wyshak – not 1 Twombly and Iqbal, – provides the proper standard for determining the sufficiency of an 2 affirmative defense. Id. For these reasons, Defendant argues, the Court should apply the “fair 3 notice” standard when evaluating Plaintiff’s motion. Id. 4 Defendant continues, going on to state why all but two of her affirmative defenses One 5 through Seven have been sufficiently pled under the fair notice standard. See ECF No. 26 at 3-6. 6 In so doing, Defendant agrees to the striking of the Third and Seventh affirmative defenses. Id. at 7 4, 6. However, Defendant requests that the Court grant leave to amend the answer so that 8 Defendant can sufficiently rectify those defenses and/or any other deficiencies. See id. at 6. 9 C. Applicable Law 10 1. Twombly and Iqbal 11 In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court addressed the 12 question of what a plaintiff must plead in order to state a claim under the Sherman Act. See 13 Twombly, 550 U.S. at 554-55 (stating case presents antecedent question of what a plaintiff must 14 plead under Act and referencing Rule 8(a)(2) language). Ultimately, the Twombly Court 15 determined that the plaintiffs’ complaint was required to have “enough factual matter taken as 16 true to suggest that an agreement [had been] made.” Twombly, 550 U.S. at 556 (brackets added). 17 The high court further found that the plaintiffs’ complaint had not provided enough facts to state a 18 claim of relief that was plausible on its face; specifically, that they had not “nudged their claims 19 across the line from conceivable to plausible.” Id. at 570. As a result, the plaintiffs’ complaint 20 was dismissed. Id. 21 In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court also only addressed the 22 standard for respondents’ complaint, finding that under Rule 8(a)(2), pleadings are to contain a 23 “short and plain statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 24 U.S at 677-78. Citing to Twombly, the Iqbal Court also stated that the pleading standard under 25 Rule 8 did not require detailed factual allegations, but that it had to contain “sufficient factual 26 matter, accepted as true to, to state a claim for relief that is plausible on its face.” Id. at 678 27 (internal quotation marks omitted). 28 2. Wyshak and Kohler 1 In Wyshak v. City Nat’l Bank, 607 F.2d 824 (1979), the Ninth Circuit specifically 2 addressed the pleading standard needed when asserting an affirmative defense. At issue in the 3 case was whether the defendant’s statute of limitations defense had been sufficiently pled. See id. 4 at 826-27. The Wyshak Court first acknowledged that Rule 8(c) determined whether the pleading 5 of the affirmative defense was sufficient, and it went on to state that “[t]he key to determining the 6 sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the 7 defense.” Id. at 827 (brackets added) (citations omitted). 8 Sometime later, in Kohler v. Flava Enterprises, Inc., 779 F.3d 1016 (9th Cir. 2015), the 9 Ninth Circuit again applied the “fair notice” standard with respect to affirmative defenses. 10 Applying the fair notice standard, it stated that said notice required by pleading standards “only 11 requires describing the defense in ‘general terms’.” Id. (citing 5 Charles Alan Wright & Arthur 12 R. Miller, Federal Practice and Procedure, § 1274 (3d ed. 1998)). 13 3. Fair Notice Standard Applied In Other Cases 14 Since the rulings in Wyshak and Kohler, the Ninth Circuit has applied the fair notice 15 standard to affirmative defense questions in other cases. See, e.g., Garcia v. Salvation Army, 918 16 F.3d 997, 1008 (9th Cir. 2019) (referencing case quoting Wyshak standard); Simmons v. Navajo 17 Cty., Arizona, 601 F.3d 1011, 1023 (9th Cir. 2010) (citing Wyshak standard) abrogated in part by 18 Castro v. Cty. of Los Angeles, 388 F.3d 1060 (9th Cir. 2016) (en banc). The Eastern District 19 does as well.1 See Gomez, 188 F. Supp. 3d at 991-92 (collecting cases) (stating Eastern District 20 has found that Kohler did not resolve heightened plausibility requirement of Twombly and Iqbal). 21 In addition, other districts in this circuit have also applied the fair notice standard when 22 considering whether affirmative defenses were adequately pled. See, e.g., Estate of Chivrell v. 23 City of Arcata, -- F. Supp. 3d -- , No. 22-cv-00019 HSG, 2023 WL 6277288, at * 2 (N.D. Cal. 24 Sept. 26, 2023) (citing Wyshak); Loi Nguyen v. Durham School Services, L.P., 358 F. Supp. 3d 25
1 The Court acknowledges that there remain differences of opinion within the Eastern District as 26 to whether the plausibility standard in Twombly and Iqbal applies to affirmative defenses. See 27 Gomez, 188 F. Supp. 3d at 991 (citing Coppola v. Smith, No. 1:11-cv-1257 AWI BAM, 2015 WL 2127965, at *6 n.4 (E.D. Cal. May 6, 2015) (stating Eastern District courts generally apply 28 Iqbal to affirmative defenses)). 1 1056, 1060 (C.D. Cal. 2019) (citing Kohler); Kaiser v. CSL Plasma, Inc., 240 F. Supp. 1129, 2 1134 (W.D. Wash. 2017) (citing Wyshak); ESCO Corporation v. Cashman Equipment Company, 3 158 F. Supp. 3d 1051, 1058 (D. Nevada 2016) (citing Wyshak). 4 D. Analysis 5 In light of the above, the Court finds that Plaintiff’s motion to strike must be denied in its 6 entirety given that it incorrectly cites to the heightened plausibility standard applied to complaints 7 in Twombly and Iqbal as the standard to be used when considering whether an affirmative 8 defense has been sufficiently pled. Thus far, the Eastern District has determined that Kohler did 9 not resolve the split on the issue of whether the heightened plausibility requirement applied to 10 complaints in Twombly and Iqbal also applies to affirmative defenses. See Gomez, 188 F. Supp. 11 3d at 991 (collecting cases). Therefore, Court agrees with the position that the fair notice 12 standard of Wyshak and Kohler established by the Ninth Circuit is the one that should be applied 13 to Defendant’s affirmative defenses. 14 Having reviewed the affirmative defenses in Defendant’s answer; considered the 15 arguments in defendant’ opposition with respect to each of them; and applied the fair notice 16 standard while doing so, the Court finds that affirmative defenses One, Two, Four, Five, and Six 17 as pled have provided Plaintiff with adequate fair notice and therefore do not warrant being 18 stricken. However, given Defendant’s stipulation to the striking of affirmative defenses Three 19 and Seven, they will be stricken. Defendant, however, will be given a short period within which 20 to amend those defenses in the answer should Defendant choose to do so. See Fed. R. Civ. P. 21 15(a)(2); Wyshak, 607 F.2d at 826 (citations omitted) (stating upon striking of affirmative 22 defense leave to amend should be freely given in absence of prejudice). 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion to strike Defendant’s affirmative defenses (ECF No. 25) is 25 DENIED; 26 2. In accord with Defendant’s stipulations (see ECF No. 26 at 4, 6), affirmative defenses 27 Three and Seven in Defendant’s answer (see ECF No. 24 at 10) are STRICKEN, and 28 3. Defendant shall either file an amended answer related to affirmative defenses Three 1 and Seven or, in the alternative, inform the Court that she declines to amend by January 26, 2 2024. 3 IT IS SO ORDERED. 4
5 Dated: January 12, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6
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