United States District Court, S.D. Ohio, Eastern Division
JANE DOE, a minor, by and through her legal guardians JOYCE and JOHN DOE Intervenor Third-Party Plaintiff,
BOARD OF EDUCATION OF THE HIGHLAND LOCAL SCHOOL DISTRICT, et al., Third-Party Defendants.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
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.
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.)
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.)
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.
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.)
STANDARD OF REVIEW
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
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.”)
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).
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.
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. The Court will address the
Affirmative Defenses 9, 27-29, and 35
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.)
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
Affirmative Defenses 9, 27-29, and 35 read as follows:
122. Plaintiff's claims are barred in whole, or in part,
under the ...