GREENBERGER v. BOBER MARKEY FEDOROVICH CO (2023)

OPINION AND ORDER

Plaintiffs Jordan and Lindsey Greenberger and J. Greenberg, PLLC bring an action for accounting malpractice against the firm of Bober, Markey, Fedorovich & Company. In its answer, Defendant asserts twenty-four of what it calls affirmative defenses. (ECF No. 10, PageID #65–66.) Various of these defenses recite those listed in Rule 12(b): improper venue, lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service of process (notwithstanding Defendant's waiver of service), failure to join a necessary party, and failure to state a claim on which the Court may grant relief. Others assert the affirmative defenses listed in Rule 8(c): accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, failure of consideration, injury by fellow servant, illegality, fraud, res judicata, statute of frauds, statute of limitations, and so on. Still others plead failure to mitigate damages, intervening or superseding acts of others as the cause of Plaintiffs’ alleged damages, the absence of a duty that Defendant owed to Plaintiffs, and a bar due to the inclusion in the complaint evidence inadmissible under Rule 408, among other things. None of these defenses plead any specific facts supporting whether or how any might apply.

I. Motion to Strike

Under Rule 12(f), Plaintiffs move to strike Defendant's affirmative defenses or, alternatively, for an order that Defendant amend its answer to include only the defenses for which it can include supporting factual allegations. (ECF No. 11.) Defendant opposes the motion. (ECF No. 13.) As a threshold matter, Rule 12(f) provides that a “court may strike from a pleading an insufficient defense.” Such motions are not favored and should be granted “only where the allegations are clearly immaterial to the controversy or would prejudice the movant.” Frisby v. Keith D. Weiner & Assocs. Co., LPA, 669 F. Supp. 2d 863, 865 (N.D. Ohio 2009) (citation omitted). “The motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy.” Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953).

Under Rule 12(f), then, Plaintiffs’ motion challenges the sufficiency of Defendant's bare recitation of numerous defenses that lack any supporting factual allegation or, in some cases, any apparent factual basis or possible connection to this dispute. At bottom, the motion turns on whether the pleading standard courts employ following the Supreme Court's decisions in 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), applies to defenses or only to the initial complaint. The Sixth Circuit has yet to answer this question, and courts within the Northern District have conflicting views on the matter.

II. The Rule 8 Pleading Standard

The Court begins its analysis with the text of the Rules. As relevant here, Rule 7(a) defines as pleadings both a complaint and the answer. Fed. R. Civ. P. 7(a)(1) & (2). Rule 8 provides the general rules for pleading. Rule 8(a)(2) requires that a claim for relief include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Twombly reads Rule 8(a)(2) as requiring “a complaint with enough factual matter (taken as true)” “to raise a right to relief above the speculative level.” 550 U.S. at 556 & 555, 127 S.Ct. 1955. Similarly, Iqbal interprets Rule 8(a)(2) as “demand[ing] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S. at 678, 129 S.Ct. 1937 (citations omitted). Both decisions rest on the text of Rule 8(a)(2). In particular, “showing” an entitlement to relief demands more than the mere possibility of a defendant's liability. Id. at 679, 129 S.Ct. 1937.

Rule 8(a)(2) does not govern defenses. Rule 8(c) does. Rule 8(c) demands only that a party “affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c)(1). Unlike Rule 8(b)(1)(A), which governs admissions, denials, and defenses to the plaintiff's claims and which mandates that a party responding to a pleading “state in short and plain terms its defenses to each claim,” Rule 8(c) requires no short and plain statement supporting any affirmative defense. Unlike Rule 8(a)(2) governing the complaint, Rule 8(c) requires no showing to support any affirmative defense. Because Twombly and Iqbal rely on the text of Rule 8(a)(2), the pleading standard that governs a complaint under that Rule simply does not apply to affirmative defenses. Indeed, neither opinion mentions defenses.

Instead of following the text of Rule 8(c), Plaintiffs urge the Court to follow the Second Circuit, which holds that “the plausibility standard of Twombly applies to determining the sufficiency of all pleadings, including the pleading of an affirmative defense,” with the qualification that applying the standard of Twombly in any case presents “a ‘context-specific’ task.” GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 98 (2d Cir. 2019) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). This qualification relates principally to the amount of time a defendant has to answer a complaint:

The pleader of a complaint has the entire time of the relevant statute of limitations to gather facts necessary to satisfy the plausibility standard. By contrast, the pleader of an affirmative defense has only [a narrow period of time in which to plead, depending on which Rule governs the time to respond to the complaint].

Id. at 98. Also, the Second Circuit noted that the nature of the defense at issue matters. Id. Although any number of policy-based reasons might suggest a different approach, the language of the Rules does not require pleading defenses in the same manner as the allegations of a complaint, even where, as here, a defendant has sufficient time for proper investigation. (ECF No. 1, ¶¶ 108–12, PageID #14; ECF No. 11-1, PageID #72 & #76.) For these reasons, and because the Second Circuit did not even mention Rule 8(c) in its discussion of defenses, the Courts finds GEOMC unpersuasive.

Put another way, Twombly and Iqbal did not change the pleading practice within this Circuit for defenses. “An affirmative defense may be pleaded in general terms and will be held to be sufficient ․ as long as it gives plaintiff fair notice of the nature of the defense.” Lawrence v. Chabot, 182 F. App'x 442, 456 (6th Cir. 2006). As the Sixth Circuit recognizes, the Rules “do not require a heightened pleading standard for a ․ defense.” Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009).

III. Boilerplate Defenses

In the face of defenses like the ones Defendant asserts here, Plaintiffs have options other than a motion to strike, which generally “wastes a party's money and the court's time.” Raymond Weil, S.A. v. Theron, 585 F. Supp.2d 473, 489–90 (S.D.N.Y. 2008). For one thing, a defendant who asserts arbitration and award as a defense, for example, can hardly be heard to complain that it must respond to discovery requests on the matter.

For another, the assertion of any defense must comply with Rule 11. Specifically, Rule 11(b) provides that an attorney who signs a pleading certifies to the court that, to the best of the lawyer's knowledge, information, and belief, the defenses are warranted by existing law based on reasonable inquiry and are not presented for any improper purpose. See Fed. R. Civ. P. 11(b)(1) & (2). In the Court's view, reflexively asserting every conceivable defense divorced from the actual facts alleged or from facts that might reasonably have evidentiary support after an opportunity for investigation or discovery does not comply with Rule 11. Nor does fear of possibly waiving a defense that has no reasonable prospect of applying justify the assertion of a defense without a good-faith factual or legal basis. After all, a defense that cannot succeed or that has “no possible relation to the controversy” is insufficient. Brown, 201 F.2d at 822 (citations omitted). Instead, the defendant should assert only the relevant defenses it can and expects to pursue and, if investigation or discovery provides grounds for a defense not previously asserted, seek amendment under Rule 15 or Rule 16, as the case may be. In this respect, the Rules require that Defendant and its counsel evaluate the legal and factual bases for defenses before asserting them.

CONCLUSION

For these reasons, the Court DENIES Plaintiffs’ motion to strike and, consistent with these principles under the Rules, ORDERS Defendant to amend its answer by February 22, 2023. In doing so, Defendant shall be prepared to explain to the Court the good-faith basis for each defense asserted and the reasonable inquiry undertaken before including each in its amended pleading.

SO ORDERED.

J. Philip Calabrese, United States District Judge