United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE
case is before the Court on Plaintiff's Motion to Strike
Affirmative Defenses Filed by Defendant (Doc. 15). Defendant
has not responded to the motion. The parties have consented
to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
filed a petition in Missouri state court against Defendant,
alleging claims of vexatious refusal to pay and breach of
contract. On December 26, 2018, Defendant removed the case to
this Court. On January 2, 2019, Defendant filed its Answer,
in which Defendant asserted several affirmative defenses.
(Doc. 8). On March 21, 2019, Plaintiffs filed the instant
motion, in which they ask the Court to strike twelve of
Defendant's affirmative defenses pursuant to Rule 12(f)
of the Federal Rules of Civil Procedure.
12(f) of the Federal Rules of Civil Procedure provides,
“The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter, ” either on its own or on a motion
made by a party. The Court may act either “(1) on its
own; or (2) on motion made by a party either before
responding to the pleading or, if a response is not allowed,
within 21 days after being served with the pleading.”
Court has broad discretion in resolving a motion to strike.
See Stanbury Law Firm v. Internal Revenue Serv., 221
F.3d 1059, 1063 (8th Cir. 2000). Motions to strike “are
viewed with disfavor and are infrequently granted.”
Id. (internal quotation marks omitted). Courts have
observed that “motions to strike can be nothing other
than distractions. If a defense is clearly irrelevant, then
it will likely never be raised again by the defendant and can
be safely ignored. If a defense may be relevant, then there
are other contexts in which the sufficiency of the defense
can be more thoroughly tested with the benefit of a fuller
record-such as on a motion for summary judgment.”
Shirrell v. St. Francis Med. Ctr., No. 1:13-CV-42
SNLJ, 2013 WL 3457010, at *1 (E.D. Mo. July 9, 2013) (quoting
Morgan v. Midwest Neurosurgeons, LLC, No.
1:11-CV-37-CEJ, 2011 WL 2728334, at *1 (E.D. Mo. July 12,
2011)); see also Speraneo v. Zeus Tech., Inc., No.
4:12-CV-578-JAR, 2012 WL 2117872, at *1 (E.D. Mo. June 11,
2012) (quoting same).
motion to strike an affirmative defense should not be granted
‘unless, as a matter of law, the defense cannot succeed
under any circumstances or is immaterial in that it has no
essential or important relationship to the claim for
relief.'” Speraneo, 2012 WL 2117872, at *1
(quotation marks omitted). In addition, “a motion to
strike should not succeed unless the party shows that it is
prejudiced by the inclusion of a defense or that a
defense's inclusion confuses the issues.” Id.
Accord Schmidt v. Hosley Int'l, Inc., No. 4:15 CV
614 CEJ, 2015 WL 4134338, at *2 (E.D. Mo. July 8, 2015);
Shirrell, 2013 WL 3457010, at *1.
Court finds that Plaintiff's Motion to Strike should be
dismissed because it was not timely filed. Under Federal Rule
of Civil Procedure 12(f)(2), the Court may strike material
from a pleading “on motion made by a party either
before responding to the pleading or, if a response is not
allowed, within 21 days after being served with the
pleading.” Defendant pleaded its affirmative defenses
on January 2, 2019. Plaintiffs filed the instant motion on
March 21, 2019- 78 days later. Thus, the motion will be
denied because it was not timely filed.
Court acknowledges that even though the motion to strike was
not timely filed, the Court is permitted, in its discretion,
to consider the motion. See, e.g., Ashokkumar v.
Elbaum, No. 4:12-CV-3067, 2012 WL 4508123, at *1 (D.
Neb. Sept. 28, 2012) (collecting cases); see also
Wright & Miller, Federal Practice &
Procedure, § 1380 (3d ed.) (“The authority
given the court by the rule to strike an insufficient defense
‘on its own' has been interpreted to allow the
district court to consider untimely motions to strike and to
grant them if doing so seems proper. This judicial discretion
is appropriate since in many instances a motion to strike
redundant, impertinent, immaterial, or scandalous matter is
designed to eliminate allegations from the pleadings that
might cause prejudice at some later point in the
the Court were to consider the merits of the untimely motion
to strike, however, the Court would find that it should be
denied. Plaintiffs have not set forth any basis for a finding
that they will be prejudiced by any of the defenses at issue
remaining in the pleadings or that the inclusion of the
defenses in the pleadings will confuse the issues. Plaintiffs
point out that two of the challenged defenses (failure to
state a claim and a reservation of a right to plead
additional defenses) are not actually properly characterized
as affirmative defenses. However, Plaintiffs do not explain
how the inclusion of these defenses in the pleadings could
cause any prejudice or confusion, nor does the Court find any
reason to believe that such prejudice or confusion could
possibly exist. The Court declines to strike these defenses
on purely semantic grounds. See, e.g., Suzanne
Dengnen, DMD, PC v. Dentis, No. 4:17-CV-292 (CEJ), 2017
WL 2021085, at *3 (E.D. Mo. May 12, 2017) (denying motion to
strike affirmative defense of failure to state a claim;
finding no prejudice and no good reason to strike an
otherwise permissible defense on semantic grounds);
CitiMortgage, Inc. v. Just Mortg., Inc., No. 4:09 CV
1909 DDN, 2013 WL 6538680, at *8 (E.D. Mo. Dec. 13, 2013)
(denying motion to strike affirmative defense of failure to
state a claim because “the court perceives no
prejudicial effect of burdensome discovery or litigating
unnecessary issues by allowing failure to state a claim to
remain in defendants' pleadings.”).
the other ten challenged affirmative defenses, Plaintiffs
have not provided any specific arguments for why any of them
are legally inadequate, are immaterial, or will cause
prejudice or confusion if they remain in the pleadings.
Rather, Plaintiffs merely assert generally that Defendant has
not set forth the affirmative defenses with sufficient
specificity, that the defenses are merely “bare bones
legal conclusions, ” and that the defenses “are
mere conclusions with no supporting statements.” This
argument appears to be based on the premise that the Court
should apply the pleading requirements articulated in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which
require a complaint to contain sufficient facts to state a
claim for relief that is plausible on its face, in evaluating
Defendant's affirmative defenses. However, the
undersigned has repeatedly held that the pleading standards
of Iqbal and Twombly do not apply to
affirmative defenses. See Arbogast v. Healthcare Revenue
Recovery Group, 327 F.R.D. 267, 269 (E.D. Mo. 2018).
Instead, a defendant must simply “state in short and
plain terms its defenses.” Fed.R.Civ.P. 8(b).
addition, the Court disagrees with Plaintiffs'
characterization of the affirmative defenses at issue as
merely “bare bones legal conclusions” with
“no supporting statements.” For example, in
affirmative defense number 5, Defendant states,
“Plaintiff failed to comply with the duties after
loss.” Answer, Doc. 8, ¶ 5. This allegation
immediately follows an allegation containing quoted language
from the insurance policy at issue specifically listing the
insured's “duties after loss, ” including,
inter alia, the duty to provide notice of the loss
and the duty to protect the property from further damage.
Read in context, affirmative defense number 5 is more than
sufficient to satisfy Rule 8(b)'s requirement of a short