United States District Court, S.D. Ohio, Western Division
STATE OF OHIO, ex rel. MICHAEL DEWINE, OHIO ATTORNEY GENERAL, Plaintiff,
GLOBE MOTORS, INC., et al., Defendants.
DECISION AND ENTRY OVERRULING PLAINTIFF STATE OF
OHIO'S MOTION TO STRIKE ELEVEN OF DEFENDANT GLOBE MOTORS,
INC.'S DEFENSES (DOC. #28) AND PLAINTIFF STATE OF
OHIO'S MOTION TO STRIKE TWENTY-TWO OF DEFENDANT NORTHRUP
GRUMMAN SYSTEMS CORPORATION'S DEFENSES (DOC.
H. RICE, UNITED STATES DISTRICT JUDGE
State of Ohio, has brought cost recovery claims under §
107(a) of the Comprehensive Environmental Response,
Compensation and Recovery Act ("CERCLA"), 42 U.S.C.
§ 9607(a), against Globe Motors, Inc., and Northrop
Grumman Systems Corporation, it has also asserted several
state law claims against these Defendants. This matter is
currently before the Court on two pending motions: (1)
Plaintiff State of Ohio's Motion to Strike Eleven of
Defendant Globe Motors, Inc.'s Defenses (Doc. #28); and
(2) Plaintiff State of Ohio's Motion to Strike Twenty-Two
of Defendant Northrup Grumman Systems Corporation's
Defenses (Doc. #29). For the reasons set forth below, both
motions are overruled.
12(f), governing motions to strike, provides as follows:
The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous
matter. The court may act: (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.
Fed. R. Civ. P. 12(f).
initial matter, Northrup Grumman argues that Plaintiff's
motion to strike should be denied as untimely, having been
filed 98 days after Plaintiff was served with the Answer.
Northrup Grumman acknowledges that Plaintiff's motion was
filed on October 29, 2018, the deadline jointly recommended
by the parties, in the original and amended Rule 26(f)
Reports, for filing motions directed to the pleadings. It
argues, however, that by the time the original Rule 26(f)
Report was filed, the 21-day period for filing motions to
strike under Rule 12(f) had already expired. In the interest
of fairness, the Court will consider the merits of
Plaintiff's motion despite its apparent untimeliness.
See Deluca v. Michigan, No. 06-12552, 2007 WL
1500331, at *1 (E.D. Mich. May 23, 2007) (given that Rule
12(f) allows the court to strike matter sua sponte
at any time, the court also has authority to consider
motions to strike, Plaintiff notes that Defendants have not
specified which defenses apply to which claims. Plaintiff
generally argues that: (1) some of the defenses asserted are
legally insufficient with respect to the CERCLA claim, and
should be stricken with prejudice as to that claim; (2) a
reservation of the right to amend the Answers to supplement
the defenses asserted is improper and should be stricken with
prejudice; and (3) that the defenses asserted fail to meet
the "plausibility" standard set forth in
Twombly/lqbal and should be stricken without
Sixth Circuit has cautioned that the "drastic"
remedy of striking a pleading should be granted "only
when the pleading to be stricken has no possible relation to
the controversy." Brown v. Williamson Tobacco Corp.
v. U.S., 201 F.2d 819, 822 (6th Cir. 1 953).
"Motions to strike are viewed with disfavor and are not
frequently granted." Operating Engineers Local 324
Health Care Plan v. G & W Const. Co., 783 F.3d 1045,
1050 (6th Cir. 2015). The Court agrees with Defendants that
none of the grounds asserted by Plaintiff warrants striking
the defenses from the Answers.
it is true that some of the defenses asserted may be legally
insufficient under CERCLA, a strict liability statute, this
does not mean that they are also legally insufficient with
respect to the state law claims. Because it cannot be said
that these defenses have "no possible relation to the
controversy," it would be inappropriate to strike them
from the Answers.
Court also rejects Plaintiff's argument that a
reservation of the right to amend the Answers to assert
additional defenses is per se improper. As
Defendants note, Fed.R.Civ.P. 15(a) expressly permits
amendments to be made throughout the course of the litigation
"when justice so requires." Accordingly, courts in
this district have often refused to strike such a reservation
of rights from an Answer. Sprint Sols., Inc. v.
Shoukry, No. 2:14-cv-00127, 2014 WL 5469877, at *4 (S.D.
Ohio Oct. 28, 2014). See also Hiles v. Army Review Bd.
Agency, No. 1:12-cv-673, 2014 U.S. Dist. LEXIS 171067,
at *7 (S.D. Ohio Dec. 10, 2014) ("The Court finds no
compelling reason to strike defendant's reservation of
its right to amend its answer to raise additional defenses
that may become apparent as this litigation proceeds,
particularly given that defendant retains this right subject
to the Federal Rules and the rules of this Court even absent
a reservation of the right.").
Court turns next to Plaintiff's argument that the
defenses asserted fail to satisfy the
"plausibility" standard set forth in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), whereby
a complaint must contain "enough facts to state a claim
for relief that is plausible on its face."
Twombly, 550 U.S. at 570. Although Twombly
and Ashcroft applied this pleading standard only to
complaints, Plaintiff seeks to extend it to affirmative
Sixth Circuit "has not addressed the precise issue of
whether the Twombly/lqbal heightened pleading
standard applies to affirmative defenses."
Depositors Ins. Co. v. Estate of Ryan, 637 Fed.Appx.
864, 869 (6th Cir. 2016). Nevertheless, in King v.
Taylor, 694 F.3d 650 (6th Cir. 2012), a
post-iqbai decision, the court held that a defense
alleging that "[t]he Complaint should be dismissed due
to insufficient service of process" was pled with
"sufficient specificity." id. at 657. The
court further noted:
An answer is no place to lay out the detailed basis for a
Rule 12(b) defense. Cf. Johnson Assocs. Corp. v. HL
Operating Corp., 680 F.3d 713, 718 (6th Cir.2012)
("The filing of an answer is, after all, the main
opportunity for a defendant to give notice of potentially
dispositive issues to the plaintiff." (emphasis added)).
Details and arguments are what motions are for. Rule
12(h)(1)(B) appears to recognize this point, for it requires
a defendant to either (i) "make" an
insufficient-service defense in a pre-answer motion or (ii)
simply "include" the defense in the answer. The
rule gives a defendant the option to preserve the defense in
either manner, provided he has not already filed a motion
under Rule 12 that did not assert the defense. Requiring
motion-like argument in an answer would eliminate the option
the rule provides.
Id. See also Montgomery v. Wyeth,
580 F.3d 455, 468
(6th Cir. 2009) ("The Federal Rules of Civil Procedure
do not require a heightened pleading standard for a statute