United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge.
13, 2019, Floyd Edward Ross, Jr., filed suit against Sharp
One, Inc., and Samual Giambelluca. Complaint (Doc.
#1). Plaintiff alleges that Giambelluca and Sharp One
negligently caused injuries which he sustained in a vehicle
collision. This matter is before the Court on plaintiff's
Response And Motion To Strike Or In The Alternative
Motion For A More Definite Statement To Defendants'
Affirmative Defenses (Doc. #6) filed August 21, 2019.
For reasons stated below, the Court overrules plaintiff's
summarized, plaintiff's complaint alleges as follows:
April 9, 2018, plaintiff was driving his vehicle on K-10
Highway near an intersection with Lexington Avenue in Desoto,
Kansas. Giambelluca was operating a tractor trailer for his
employer, Sharp One, near the same intersection. Giambelluca
improperly crossed into plaintiff's lane and struck the
rear and driver's side of plaintiff's vehicle,
causing serious injury. Alternatively, Giambelluca's
tractor trailer overtook plaintiff's vehicle from the
rear and driver's side, causing serious injury.
Giambelluca later informed authorities that he may have
fallen asleep while driving. Plaintiff claims that
defendants' negligence caused his injuries. In response,
defendants assert several affirmative defenses, including
failure to state a claim, contributory fault, third-party
negligence, superseding causes, failure to mitigate and
preexisting injuries. Defendants' Answer And
Affirmative Defenses To Plaintiff's Complaint (Doc.
#4) at 6.
asserts that the Court should strike defendants'
affirmative defenses numbers 2-5 and 7-12 because they do not
comply with the pleading standards under Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). Under Twombly
and Iqbal, a complaint must contain sufficient
factual matter to state a claim which is plausible - and not
merely conceivable - on its face. Iqbal, 556 U.S. at
679-80; Twombly, 550 U.S. at 555. Moreover, a
complaint cannot merely make threadbare recitals of a cause
of action accompanied by conclusory statements.
Twombly, 550 U.S. at 556. A pleading that offers
labels and conclusions, a formulaic recitation of the
elements of a cause of action or naked assertions devoid of
further factual enhancement will not stand. Iqbal,
556 U.S. at 678.
Fed.R.Civ.P. 12(f), the Court may strike an insufficient
defense from a pleading. To determine whether a defense is
sufficient, the Court looks to Fed.R.Civ.P. 8(b)(1)(A), under
which a party must “state in short and plain terms its
defenses to each claim asserted against it.” Courts,
including those within this District, are split on whether
Twombly and Iqbal govern the pleading of
defenses under Fed.R.Civ.P. 8(b)(1)(A). In this District, the
majority view is that the Twombly and Iqbal
requirements do not apply. Falley v. Friends Univ., 787
F.Supp.2d 1255, 1259 (D. Kan. 2011); Bennett v. Sprint
Nextel Corp., No. 09-2122-EFM, 2011 WL 4553055, at *2
(D. Kan. Sept. 29, 2011); Unicredit Bank AG v.
Bucheli, No. 10-2436-JWL, 2011 WL 4036466, at *6 (D.
Kan. Sept. 12, 2011); United States ex rel. Minge v. TECT
Aerospace, Inc., No. 07-1212-MLB, 2011 WL 2473076, at *3
(D. Kan. June 21, 2011); Bowers v. Mortg. Elec.
Registration Sys., No. 10-4141-JTM, 2011 WL 2149423, at
*4 (D. Kan. June 1, 2011); RES-MO Springfield, LLC v.
Tuscany Props., L.L.C., No. 13-2169-EFM-DJW, 2013 WL
3991794, at *3 (D. Kan. Aug. 5, 2013); Drury v.
Wendy's Old Fashioned Hamburgers of New York, Inc.,
No. 12-2012-JTM, 2012 WL 2339747, at *3 (D. Kan. June 19,
substantially the reasons set forth in Falley, the
Court joins the majority in the District of Kansas and finds
that the Twombly and Iqbal pleading
requirements do not apply to defenses. See Falley,
787 F.Supp.2d at 1258. First, under the plain language of
Fed.R.Civ.P. 8, the heightened pleading requirements for
parties seeking relief do not apply to parties asserting
defenses. In Twombly, the Supreme Court specifically
relied on the language of Rule 8(a), which provides that
“[a] pleading that states a claim for relief must
contain . . . a short and plain statement of the claim
showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added);
see also Twombly, 550 U.S. at 557. By contrast, Rule
8(b) requires only that defenses be “state[d] in short
and plain terms.” Fed.R.Civ.P. 8(b). Similarly, Rule
8(c) requires affirmative defenses to be “affirmatively
state[d], ” without any language similar to that from
Rule 8(a) italicized above. Fed.R.Civ.P. 8(c); see
Falley, 787 F.Supp.2d at 1258-59; see also Unicredit
Bank AG, 2011 WL 4036466 at *6.
in contrast to a plaintiff, who “may take years to
investigate and prepare a complaint, ” defendants have
only 21 days after being served to provide an answer. See
Falley, 787 F.Supp.2d at 1258-59; see also Unicredit
Bank AG, 2011 WL 4036466 at *6. If defendants fail to
state an affirmative defense in that answer, they risk
waiver. Falley, 787 F.Supp.2d at 1258-59 (citing
Fed.R.Civ.P. 12(g)(2), (h)(1)(A)). Thus, “it makes
sense to require more factual description of a plaintiff than
a defendant under these circumstances.” Id.
striking an affirmative defense is a “drastic remedy,
” and should only be done when the defense
“cannot succeed under any circumstances.”
Id.; see also Unicredit Bank AG, 2011 WL
4036466, at *6 (striking defenses generally disfavored and
are usually denied unless allegations have no possible
relation to controversy and may prejudice parties).
the Court does not want to “encourage parties to bog
down litigation by filing and fighting motions to strike
answers or defenses prematurely.” Falley, 787
F.Supp.2d at 1259. The goal of Rule 12(f) is to
“minimize delay, prejudice, and confusion.”
Id. (citing Resolution Trust Corp. v.
Fleischer, 835 F.Supp. 1318, 1320 (D. Kan. 1993)).
Applying Twombly and Iqbal to affirmative
defenses would “invite many more motions to strike,
which achieves little.” Id. (citing Lane
v. Page, 272 F.R.D. 581, 596 (D. N.M. 2011)). The remedy
for striking defenses at this stage of the litigation is
often to allow amendment. See Hayne, 263 F.R.D. 647,
652 (noting that majority of cases applying Twombly
pleading standard to affirmative defenses and striking those
defenses have permitted defendant leave to amend). Therefore,
applying the Twombly and Iqbal standard
“would likely result in increased motions practice with
little practical impact on the case's forward
progression.” Falley, 787 F.Supp.2d at 1259.
For these reasons, the Court joins the majority in the
District of Kansas and finds that Twombly and
Iqbal do not apply to defenses. Rather, pursuant to
Fed.R.Civ.P. 8(b)(1)(A), a party need only “state in
short and plain terms its defenses to each claim asserted