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Doe v. Bojangles' Restaurants, Inc.

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

May 9, 2019

JANE DOE NO. 1 by and through JANE DOE NO. 2, as next friend and mother of minor Plaintiff, Plaintiff,
v.
BOJANGLES' RESTAURANTS, INC., Defendant.

          REPORT AND RECOMMENDATION

          SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff's Motion to Strike Certain Defenses in Defendant's Answer [Doc. 14], with a supporting brief [Doc. 15]. Defendant filed a response in opposition to the motion [Doc. 16].[1] Plaintiff did not file a reply. The motion is now ripe for adjudication and has been referred pursuant to 28 U.S.C. § 636 [Doc. 17]. For the reasons stated herein, I recommend that Plaintiff's motion be denied.

         I. BACKGROUND

         Plaintiff's motion, filed pursuant to Federal Rule of Civil Procedure 12(f), asserts the following 11 of 17 defenses pleaded by Defendant should be stricken:

3. Some or all of Plaintiffs' claims are barred by the applicable statutes of limitations.
5. Any improper, illegal, discriminatory, or retaliatory actions by any employee of Defendant were independent, intervening, and unforeseeable acts that were not ratified, confirmed, or approved by Defendant and thus cannot be attributed or imputed to Defendant.
6. Defendant has in place a clear and well-disseminated policy against harassment and discrimination and a reasonable and available procedure for handling complaints thereof, which provides for prompt and effective responsive action. Plaintiffs unreasonably failed to take advantage of the preventive or corrective opportunities provided by Defendant, or to avoid harm otherwise, and therefore Plaintiffs' claims of alleged harassment and/or discrimination are barred.
7. Defendant had no actual or constructive notice of the alleged conduct of which Plaintiffs now complain and was, thereby, deprived of the opportunity to investigate and/or to take prompt, remedial and appropriate action.
8. The conduct of which Plaintiffs complain was not unwelcome to Plaintiffs.
9. The conduct of which Plaintiffs complain was not because of sex or of a sexual nature.
10. To the extent Plaintiffs complained adequately of allegedly unlawful harassing, discriminatory, or retaliatory actions, Defendant undertook a prompt investigation and made an appropriate remedial response.
13. Plaintiffs failed to mitigate or reasonably attempted to mitigate alleged damages, if any, as required by law.
14. Plaintiffs' claims are barred, in whole or in part, by the doctrine of ...

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