The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff filed a two-count complaint against Defendant
alleging sexual harassment, constructive discharge and
retaliation in violation of 42 U.S.C. § 2000e ("Title VII"). In
her complaint, plaintiff seeks reinstatement, lost compensation,
compensatory and punitive damages, and prejudgment interest. In
answering plaintiff's complaint, Defendant advanced fourteen
affirmative defenses. Now plaintiff argues that thirteen of
Defendant's fourteen affirmative defenses are insufficient and
should be stricken.
A. Standard of Review for Motions to Strike Affirmative
Pursuant to Federal Rule of Civil Procedure 8(c) ("Rule 8(c)"),
a party must to set forth affirmative defenses in a responsive
pleading. FED.R.CIV.P. 8(c). Under Federal Rule of Civil
Procedure 12(f) ("Rule 12(f)"), "the court may order stricken
from any pleading any insufficient defense." FED.R.CIV.P. 12(f).
Courts generally disfavor motions to strike affirmative defenses
because they potentially serve only to cause delay. See Heller
Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.
1989). Nevertheless, courts should strike affirmative defenses
that are clearly mistitled or redundant, for example if they
raise matters already raised in the defendant's denial. See
Household Fin. Serv., Inc. v. Northeastern Mortgage Inv. Corp.,
No. 00 C 0667, 2000 WL 816795, at *1 (N.D.Ill. June 22, 2000)
(citing Heller, 883 F.2d at 1295); Sanwa Bus. Credit Corp. v.
Harris, No. 91 C 0204, 1991 WL 156116, at *1 (N.D.Ill. Aug.6,
Affirmative defenses are pleadings and, as such, are subject to
the pleading requirements of the Federal Rules of Civil
Procedure. See Heller, 883 F.2d at 1294; Flasza v. TNT Holland
Motor Express, Inc., 155 F.R.D. 612, 613 (N.D.Ill. 1994).
Accordingly, affirmative defenses must set forth a "short and
plain statement." FED. R.CIV.P. 8(a). However, even under the
liberal notice pleading standard of the Federal Rules of Civil
Procedure, an allegation must include either direct or
inferential allegations respecting all material elements of the
claim asserted. United States v. Hartz Constr. Co., Inc., No.
98 C 4785, 2000 WL 1220919 at *7 (N.D.Ill. Aug. 18, 2000)
(quoting MAN Roland v. Quantum Color Corp., 57 F. Supp.2d 576,
578 (N.D.Ill. 1999)). Bare legal conclusions attached to narrated
facts will not suffice. See Heller, 883 F.2d 1286, 1294
(granting motion to strike affirmative defenses in which
defendants omitted any short and plain statement of facts and
failed to allege necessary elements of claims); Strauss v. City
of Chicago, 760 F.2d 765, 768 (7th Cir. 1985).
Furthermore, affirmative defenses must meet the standards of
Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)").
FED.R.CIV.P. 12(b)(6); see also Codest Eng'g v. Hyatt Int'l
Corp., 954 F. Supp. 1224, 1228 (N.D.Ill. 1996). Under Rule
12(b)(6), the court must accept all factual allegations as true
and draw all reasonable inferences in favor of the pleader. If,
when viewed in the light most favorable to the pleader, the
allegation fails to state a claim upon which relief can be
granted, the court must dismiss it. See Gomez v. Illinois State
Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987) (construing
Rule 12(b)(6)). Nevertheless, the court may dismiss the
allegation only if it appears beyond a doubt that the pleader can
prove no set of facts in support of its claim that would entitle
it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957).
This district has followed a three-part test in examining
affirmative defenses subject to a motion to strike: (1) the
matter must be properly pleaded as an affirmative defense; (2)
the matter must be adequately pleaded under the requirements of
Federal Rules of Civil Procedure 8 and 9; and (3) the matter must
a Rule 12(b)(6) challenge — in other words, if it is impossible
for defendants to prove a set of facts in support of the
affirmative defense that would defeat the complaint, the matter
must be stricken as legally insufficient. Heller, 883 F.2d at
1294 (approving three-part test set forth in Bobbitt v.
Victorian House, Inc., 532 F. Supp. 734, 737 (N.D.Ill. 1982));
see also Franklin Capital Corp. v. Baker & Taylor Entm't, Inc.,
No. 99 C 8237, 2000 WL 1222043, at *2 (N.D.Ill. Aug.22, 2000)
(quoting and following three-part test). Note, however, that
striking an affirmative defense does not necessarily bar its
substantive argument from the case because affirmative defenses —
like complaints — are protected by the direction of Rule 15(a)
that courts are to grant leave to amend pleadings "freely . . .
when justice so requires." FED.R.CIV.P. 15(a); see also
Instituto Nacional de Comercializacion Agricola v. Continental
Ill. Nat'l Bank & Trust Co., 576 F. Supp. 985, 988 (N.D.Ill.
1983) (citing Bobbitt, 532 F. Supp. at 737).
In its motion to strike, plaintiff alleges that thirteen of
defendant's fourteen affirmative defenses fail to meet the
liberal pleading requirements of the Federal Rules. Plaintiff
alleges that these thirteen defenses consist of nothing more than
contentions that the plaintiff cannot prove the necessary
elements of her claim, that these same contentions are raised by
denials in defendant's answer, and that, therefore, these
contentions do not constitute affirmative defenses and should be
stricken as patently insufficient. (Pl.'s Mot. to Strike
Affirmative Defenses at 2.) In response, defendant emphasizes
that courts generally disfavor motions to strike affirmative
defenses and that, under notice pleading standards, affirmative
defenses need only to appraise the plaintiff of the nature of the
defense. (Def.'s Mem. in Resp. to Pl.'s Mot. to Strike
Affirmative Defenses at 1-2.) The court addresses each disputed
affirmative defense in the order presented by the parties.
B. First and Eleventh Affirmative Defenses
Defendant's first affirmative defense states: "Plaintiff's
entire Complaint and each Count set forth therein fails to
adequately state a claim for relief." Defendant's eleventh
affirmative defense states: "Plaintiff's Complaint fails to set
forth facts sufficient to state a claim for exemplary or punitive
Some courts in this district find that "legal insufficiency
(properly assertable under Rule 12(b)(6)) is not a proper
affirmative defense under Rule 8(c), for `a true affirmative
defense raises matters outside the scope of plaintiff's prima
facie case and such matter is not raised by a negative defense,
but instead is properly raised through a Rule 12(b)(6) motion to
dismiss.'" Instituto Nacional, 576 F. Supp. at 991 (quoting 2A
JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 8.27).
Other courts in this district recognize that Rules 12(b)(6) and
12(h)(2) give the defendant the option of presenting a
failure-to-state-a-claim defense in a responsive pleading or in a
separate motion. See, e.g., Codest Eng'g, 954 F. Supp. at 1231.
However, even if this court followed Codest and allowed these
two affirmative defenses in defendant's responsive pleading, the
two defenses are insufficiently pleaded and must be stricken.
The first and eleventh affirmative defenses are insufficient on
their face because they are bare-bones conclusory allegations,
simply naming legal theories without indicating how they are
connected to the case at hand. Defendant's first and eleventh
affirmative defenses are "no more than a recitation of the
standard for a motion to dismiss under Rule 12(b)(6)." Id.
(striking the failure-to-state-a-claim defense for failing to
identify any specific infirmities in the complaint); accord
Fleet Bus. Credit Corp. v. Nat'l City Leasing Corp., 191 F.R.D.
568, 569 (N.D.Ill. 1999). While the Federal Rules of Civil
Procedure allow liberal notice pleading and do not require a
claimant to set out in detail
the facts upon which it bases a claim, they do not allow a
claimant to merely recite the standard for a 12(b)(6) motion to
dismiss, and to thereby "abdicate the responsibility of alleging
the basic facts demonstrating his entitlement to relief." Murphy
v. White Hen Pantry Co., 691 F.2d 350, 353 (7th Cir. 1982)
(quoted in Franklin Capital Corp., 2000 WL 204227, at *2
(N.D.Ill. Feb.10, 2000)). Accordingly, the court strikes
defendant's first and eleventh affirmative defenses.
C. Second and Third Affirmative Defenses
Defendant's second affirmative defense states: "At all times
pertinent to this case, the Bar & Grill acted in good faith and
did not intentionally or willfully discriminate against Plaintiff
in violation of any federal laws." Defendant's third affirmative
defense states: "Any employment actions taken with respect to
Plaintiff were based upon legal criteria, and upon important and
legitimate business purposes. Further, the Bar & Grill had
legitimate and non-discriminatory reasons for all employment
actions taken with respect to Plaintiff."
Again, like defendant's first and eleventh affirmative
defenses, these two affirmative defenses are impermissible
conclusory statements (see supra Sect. II. B.). Moreover,
defendant has already put these matters in issue by denying
certain allegations in its answer, and defendant not only need
not but cannot raise these matters again via an affirmative
defense. See Menchaca v. Am. Med. Response of Illinois, Inc.,
6 F. Supp.2d 971, 973 (N.D.Ill. 1998) (holding that where plaintiff
employee alleged discriminatory and retaliatory reasons for her
firing and defendant employer put those matters in issue by
denials of those allegations, employer could not put those
matters in issue again via an affirmative defense asserting that
it "terminated Plaintiff's employment for legitimate business
reasons"); Winding v. Pier Management Service, No. 96 C 7461,
1997 WL 51475, at *2 (N.D.Ill. Feb.4, 1997) (holding that