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Doe v. Board Of Education of The Highland Local School District

United States District Court, S.D. Ohio, Eastern Division

August 21, 2017

JANE DOE, a minor, by and through her legal guardians JOYCE and JOHN DOE Intervenor Third-Party Plaintiff,
v.
BOARD OF EDUCATION OF THE HIGHLAND LOCAL SCHOOL DISTRICT, et al., Third-Party Defendants.

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Intervenor Jane Doe's Motion to Strike Certain Defenses from the Answer of Third-Party Defendants Board of Education of the Highland Local School District, Shawn Winkelfoos, and William Dodds (collectively, “Highland”) (Doc. 119.) For the reasons that follow, the Court GRANTS in part and DENIES in part Doe's Motion to Strike Highland's Affirmative Defenses. (Doc. 119.) In particular, the Court STRIKES with prejudice affirmative defenses 10, 36-38, and 40 and STRIKES without prejudice affirmative defenses 2-5, 7-9, 26-29, 30, 32, 35, and 39.

         I. BACKGROUND

         This case centers on the efforts of an eleven-year-old transgender girl to use the girls' restroom at Highland Elementary School. The case began with Highland asking this Court to enjoin the Department of Education (“DOE”) and the Department of Justice (“DOJ”) from enforcing Title IX's antidiscrimination provisions based on the school district's policy of segregating student bathrooms by biological sex. (Doc. 10 at 1-3.) The Court granted Jane Doe's motion to intervene (Docs. 15, 29), and Jane Doe filed her intervenor third party complaint, in which she alleges violations of the United States Constitution (Fourteenth Amendment and Right to Privacy), and Title IX of the Education Amendments of 1972. (Doc. 32.) Doe subsequently filed her own motion for a preliminary injunction, seeking to require Highland to “treat her as a girl and treat her the same as other girls, including using her female name and female pronouns and permitting Jane to use the same restroom as other girls at Highland Elementary School during the coming school year.” (Doc. 36 at 2.)

         Following extensive briefing and oral argument, on September 26, 2016, the Court denied Highland's motion for preliminary injunction against the DOE and DOJ and granted Jane Doe's motion for preliminary injunction against Highland. (Doc. 95.) Highland appealed, and dozens of states and the District of Columbia weighed in via amicus briefs. (Docs. 99, 100.)

         Highland answered Doe's complaint on October 31, 2016, (Doc. 115), and Doe moved to strike certain of Highland's affirmative defenses on November 21, 2016. (Doc. 116.) Highland replied to Doe's motion to strike on December 27, 2016, (Doc. 127), and this motion is now ripe for review.

         Meanwhile, in late December 2016, the parties stipulated, (Doc. 126), and the Court adopted the parties' stipulation, (Doc. 129), to stay this case until the conclusion of the Sixth Circuit appeal of the Court's preliminary injunction order. Following a change in political administration and the new administration's revocation of DOE/DOJ guidance documents relating to transgender students, the parties agreed to dismiss the appeal. (Doc. 130.) Highland then dismissed the DOE and DOJ from the case before this Court. (Doc. 131.) Doe's case against Highland remains, however, and the Court now addresses Doe's motion to strike certain of Highland's affirmative defenses. (Doc. 119.)

         II. STANDARD OF REVIEW

         The Court, upon motion or on its own, “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike are entrusted to the “sound discretion of the trial court, but are generally disfavored.” Yates-Mattingly v. University of Cincinnati, No. 1:11-cv-753, 2013 WL 526427, at *1 (S.D. Ohio Feb. 11, 2013). Indeed, “[s]triking pleadings is considered a drastic remedy to be used sparingly and only when the purposes of justice so require.” Id. (citing Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.1953)). The Court should grant a motion to strike “only when the pleading stricken has no possible relation to the controversy.” Id. Indeed, the Court should not grant a motion to strike if “the insufficiency of the defense is not clearly apparent, or if it raises factual issues that should be determined on a hearing on the merits.” Joe Hand Promotions, Inc. v. Havens, 2:13-cv-0093, 2013 WL 3876176, at *1 (S.D. Ohio July 26, 2013) (internal quotation omitted).

         On the other hand, “motions to strike ‘serve 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.'” Id. (internal quotations omitted). If an affirmative defense is “insufficient; that is, if as a matter of law, the defense cannot succeed under any circumstances, ” then a motion to strike is proper. Sec. & Exch. Comm'n v. Thorn, No. 2:01-CV-290, 2002 WL 31412440, at *2 (S.D. Ohio Sept. 30, 2002). An affirmative defense that is insufficient as a matter of law may be stricken with prejudice. See Id. at *3; Stein v. Chubb Custom Ins. Co., No. 15-cv-23690, 2016 WL 8716500, at *2 (S.D. Fla. Mar. 29, 2016) (“an affirmative defense should only be stricken with prejudice when it is insufficient as a matter of law. Otherwise, district courts may strike the technically deficient affirmative defense without prejudice and grant the defendant leave to amend the defense.”)

         In addition, district courts are split as to whether the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) apply to affirmative defenses, and the Sixth Circuit has not weighed in. Herrera v. Churchill McGee, LLC, 680 F.3d 539, 547 n.6 (6th Cir. 2012) (We therefore have no occasion to address, and express no view regarding, the impact of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), on affirmative defenses.”); Peters v. Credit Protection Ass'n LP, No. 2:13- CV-0767, 2015 WL 1022031, at *2 (S.D. Ohio Feb. 19, 2015) (acknowledging split among district courts and applying Twombly/Iqbal standards to affirmative defenses); Chiancone v. City of Akron, No. 5:11-CV-337, 2011 U.S. Dist. LEXIS 108444, at *10 (N.D. Ohio Sep. 23, 2011) (acknowledging split among district courts and declining to apply Twombly/Iqbal standards to affirmative defenses). Under the Twombly/Iqbal standard, a complaint's factual allegations “must be enough to raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555. A claim is plausible when it contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Court is not required to accept as true mere legal conclusions unsupported by factual allegations. Id. (citing Twombly, 550 U.S. at 555).

         In Peters v. Credit Protection Association LP, and Edizer v. Muskingum University, this Court has made clear that it agrees with the reasoning of the district courts applying Twombly/Iqbal to affirmative defenses. Peters, No. 2:13-CV-0767, 2015 WL 1022031, at *4 (S.D. Ohio Feb. 19, 2015); Edizer, No. 2:11-CV-799, 2012 WL 4499030, at *11-12 (S.D. Ohio Sept. 28, 2012). Therefore, because the Sixth Circuit has not weighed in with a contrary opinion, the Court holds that Highland's affirmative defenses must meet the “plausibility” pleading standards contained in Twombly and Iqbal.

         III. ANALYSIS

         Jane Doe seeks to strike Highland's affirmative defenses 2-5, 7-8, 10, 26, 30, 32, and 36-40 on the grounds that they are immaterial or insufficient on their faces. She seeks to strike affirmative defenses 9, 27-29, and 35 on the grounds that they fail to meet the plausibility standards laid out in Twombly and Iqbal.[1] The Court will address the latter first.

         A. Affirmative Defenses 9, 27-29, and 35

         Doe contends that Affirmative Defenses 9, 27-29, and 35 fail to set forth the factual allegations necessary to meet the plausibility requirements of Twombly/Iqbal. (Doc. 119-1 at 2, 6-8.) Because these affirmative defenses are “‘bare-bones conclusion[s]' or “boilerplate defenses that do ‘not fit the admitted facts in the pleadings, '” Doe argues that they should be dismissed without prejudice so that Highland can attempt to meet the pleading requirements. (Id.)

         Highland argues that Twombly and Iqbal do not apply to affirmative defenses, and seeks support in the Sixth Circuit's opinion in Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009). This argument is ill-conceived, however, because this Court has already rejected Montgomery's applicability to affirmative defenses, Peters, 2015 WL 1022031, at *4, and the Sixth Circuit itself has acknowledged that it has not reached the question of whether affirmative defenses are subject to the standards in Twombly and Iqbal. Herrera, 680 F.3d at 547 n.6 (We therefore have no occasion to address, and express no view regarding, the impact of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), on affirmative defenses.”).

         Highland's Affirmative Defenses 9, 27-29, and 35 read as follows:

         NINTH DEFENSE

122. Plaintiff's claims are barred in whole, or in part, under the ...

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