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Welch v. FFE Transportation Services, Inc.

United States District Court, E.D. Tennessee, Knoxville

June 18, 2015

TOMMYE WELCH, Plaintiff,
v.
FFE TRANSPORTATION SERVICES, INC. and LINDA REESE, Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN, Chief District Judge.

This civil action is before the Court as a result of plaintiff's Motion to Strike Affirmative Defenses [Doc. 27]. Defendant Linda Reese filed a response [Doc. 29]. Plaintiff has not replied and the time for doing so has passed. See E.D. Tenn. L.R. 7.1(a), 7.2. For the reasons that follow, the Court grants in part and denies in part plaintiff's Motion to Strike Affirmative Defenses.

I. Background

Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, plaintiff moves to strike five of defendant Reese's affirmative defenses [Doc. 27].

First, plaintiff moves to strike defendant's first affirmative defense, that is that plaintiff has failed to state a claim upon which relief can be granted against defendant pursuant to Rule 12 of the Federal Rules of Civil Procedure [Doc 27 p. 3]. Plaintiff submits that defendant has made a conclusory allegation with no basis under the law and no facts to support it, making it immaterial and therefore having no "important relationship to the claim for relief or the defenses being pleaded" [ Id. ].

Second, plaintiff moves to strike defendant's fifth affirmative defense, that is that the accident which is the subject matter of the complaint was caused or brought about by a superseding intervening cause of a sudden emergency or resulted from some "Act of God" beyond the control of Ms. Reese, including, but not limited to (1) the weather and road conditions at the time of the subject accident; (2) actions of other drivers such as the unknown driver, John Doe I, of the vehicle that impacted plaintiff's vehicle causing plaintiff to stop on the interstate without operating taillights; and (3) the unknown driver of the 1998 Chevrolet Cavalier, John Doe II, who operated that vehicle in such a manner as to distract Ms. Reese and impair her reaction time [ Id. at 3-4]. Plaintiff submits that this affirmative defense "is redundant as the sudden emergency defense is no longer a valid defense in Tennessee, having been subsumed by the adoption of comparative fault" and that defendant pleads the issue of comparative fault in her seventh defense [ Id. ].

Third, plaintiff moves to strike defendant's seventh affirmative defense of comparative fault, that is that the percentage of fault attributable to her should be reduced by the fault attributable to (1) the unknown driver of the vehicle who caused his vehicle to impact plaintiff's vehicle, John Doe I, for common law negligence; (2) the unknown driver of the 1998 Chevrolet Cavalier, John Doe II, for common law negligence; (3) the registered owner of the 1998 Chevrolet Cavalier, Isaias Simion Lobos, for negligent entrustment of his vehicle to John Doe II under the doctrine of respondeat superior, and (4) other known or unknown third parties [ Id. at 4-6]. Plaintiff claims there is no legal basis for the fact finder to compare fault with the driver in the previous accident [ Id. at 4]. Additionally, plaintiff asserts that the affirmative defense of comparative fault was not properly raised in compliance with Tennessee Rules of Civil Procedure 8.03 because requesting that the fact finder compare fault with "other known or unknown third parties" is impermissibly vague [ Id. at 5].

Fourth, plaintiff moves to strike defendant's tenth affirmative defense, that is that "Ms. Reese relies on all applicable statues of limitations, if proven applicable by investigation and discovery" [Doc. 23 p. 10]. Plaintiff submits that this allegation is conclusory and that the complaint was filed timely [Doc. 27 p. 6].

Finally, plaintiff moves to strike defendant's eleventh defense, that is that plaintiff's claims are barred by sudden emergency, duress, estoppel, laches, and waiver [ Id. ]. Plaintiff submits that these are a series of conclusory allegations without basis in fact or in law in this case and that the defense of sudden emergency was specifically addressed in the defendant's fifth defense [ Id. ].

Defendant filed a response in opposition to plaintiff's motion to strike [Doc. 29]. In her response, defendant submits plaintiff is seeking a "drastic remedy" to strike affirmative defenses, as they are generally not favored and are appropriate only "when the pleading to be stricken has no possible relation to the controversy" [ Id. at 1]. Defendant also notes that plaintiff did not challenge the defenses raised by defendant FFE Transportation Services, Inc., which are nearly identical to those of defendant [ Id. at 2]. Defendant requests that the Court use a "fair notice" standard to determine whether the affirmative defenses have been sufficiently plead [ Id. at 1].

II. Analysis

Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the Court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The decision to strike an affirmative defense is solely discretionary. ConcoPhillips, Co. v. Shaffer, No. 3:05-CV-7131, 2005 WL 2280393, at *2 (N.D. Ohio Sept. 19, 2005). The United States Court of Appeals for the Sixth Circuit has held that "because of the practical difficulty of deciding cases without a factual record it is well established that the action of striking a pleading should be sparingly used by the courts. It is a drastic remedy to be resorted to only when required for the purposes of justice." Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953) (internal citations omitted). See also Operating Eng'rs Local 324 Health Care Plan v. G & W Constr. Co., 783 F.3d 1045 (6th Cir. 2015) (stating that the function of a motion to strike is to "avoid the expenditure of time and money [arising] from litigating spurious issues by dispending with' them early in the case" (quoting Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986))). Further, the Court of Appeals has advised that "[a] motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy." Brown & Williamson Tobacco Corp., 201 F.2d at 822. In other words, a motion to strike an affirmative defense under Rule 12(f) "is proper if the defense is insufficient; that is, if as a matter of law, the defense cannot succeed under any circumstances.'" S.E.C. v. Thorn, No. 2:01-CV-290, 2002 WL 31412440, at *2 (S.D. Ohio Sept. 30, 2002) (quoting Ameriwood Indus. Int'l Corp. v. Arthur Andersen & Co., 961 F.Supp. 1078, 1083 (W.D. Mich. 1997)). See also United States v. Pretty Prods., Inc., 780 F.Supp. 1488, 1498 (S.D. Ohio 1991) (stating that a motion to strike may be appropriate where it "serve[s] a useful purpose by eliminating insufficient defenses and saving the time and expense which would otherwise be spent in litigating issues which would not affect the outcome of the case'" (quoting United States v. Marisol, Inc., 725 F.Supp. 833, 836 (M.D. Pa. 1989))).

A. Failure to State a Claim

"[E]very defense, " including "failure to state a claim upon which relief can be granted, " "must be asserted in the responsive pleading." Fed.R.Civ.P. 12(b). Failure to state a claim upon which relief can be granted may be raised in any pleading allowed under Rule 7(a), including an answer to a complaint. Fed.R.Civ.P. 12(h)(2)(A). See also Sony/ATV Music Pub. LLC v. D.J. Miller Music Distribs., Inc., No. 3:09-CV-01098, 2011 WL 4729807, at *5 (M.D. Tenn. Oct. 7, 2011) (finding that courts in the Sixth Circuit have accepted "failure to state a claim" as an affirmative defense). Accordingly, ...


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