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November 2, 2000


The opinion of the court was delivered by: Alesia, District Judge.


Before the court is plaintiff Denise Renalds' ("plaintiff") motion to strike defendant S.R.G. Restaurant Group Chicago's ("Defendant") affirmative defenses. For the following reasons, the court grants in part and denies in part plaintiff's motion to strike Defendant's affirmative defenses.


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 Defenses

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, 1991).

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 withstand 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 damages."

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[4]). 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 affirmative ...

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