United States District Court, N.D. Illinois
June 2, 2004.
SAUBER PAINTING & DECORATING, INC., and BOB SAUBER, Plaintiffs, V. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES DISTRICT COUNCIL #30, et al., Defendants
The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART PLAINTIFFS' MOTION TO STRIKE
Before the Court is the motion of Plaintiff Sauber Painting &
Decorating, Inc., and Plaintiff Bob Sauber (collectively, "Plaintiffs")
to strike the three affirmative defenses of Defendant International Union
of Painters and Allied Trades District Council # 30 and various other
officers and leaders of the union (collectively, "Defendants").
Plaintiff's argue that the affirmative defenses do not comply with the
pleading requirements of Federal Rule of Civil Procedure 8 ("Rule 8"). In
addition, Plaintiffs contend that Counts II through VII of their
complaint do not implicate federal labor law, as asserted by affirmative
defense one, but rather invoke matters of general state law, such that
those counts are not in fact preempted. As explained below, the Court
grants Plaintiffs' motion to strike affirmative defense one and denies
the motion to strike affirmative defenses two and three. BACKGROUND
Plaintiff Sauber Painting & Decorating, Inc. ("SP & D") is a
commercial and residential painting contractor with its principal place
of business in St. Charles, Illinois. (D.E. 1 ¶ 1.) Plaintiff Bob Sauber
is the President of SP & D. (Id ¶ 2.) Plaintiffs allege that Defendants
have picketed SP & D with the objectives of inducing other persons to
cease doing business with SP & D and of inducing neutral employees to
withhold services-all in violation of Section 8(b)(4)(B) of the National
Labor Relations Act, 29 U.S.C. § 185(b)(4)(B). (Id. ¶ 4.) In Counts II
through VI, Plaintiffs allege various state law torts, and in Count VII,
Plaintiffs allege a violation of the Illinois Deceptive Trade Practices
Act. (Id. ¶¶ 7-74.)
Defendants' first amended answer generally denies the Plaintiffs'
allegations and sets forth three affirmative defenses. (D.E. 4.)
Defendants allege in the first affirmative defense that "[t]his court has
no jurisdiction of counts II through VII in that each of these state law
claims [sic] are preempted by federal labor law." (Id. at 23.) Defendants
allege in affirmative defenses two and three, respectively, that specific
statute of limitation provisions of Illinois law bar Count III, alleging
defamation, and Count VI, alleging intentional infliction of emotional
Plaintiffs have moved to strike all of the affirmative defenses.
Plaintiffs assert that the defenses are merely conclusory statements and
barebones legal conclusions, unsupported by any facts or explanation,
that fail to provide the Plaintiffs with sufficient notice of the bases
of the various defenses. (D.E. 10 at 2-3.) In addition, Plaintiffs argue
at length that-with respect to affirmative defense one, which generically
alleges preemption-the Plaintiffs' state law claims are not preempted
under various federal labor law preemption regimes. (Id. at 4-8.) The
Court agrees that affirmative defense one is inadequately pleaded but disagrees
with Plaintiffs' assertions regarding affirmative defenses two and
three, as further explained below.
The purpose of Rule 8(c) is to give the opposing party notice of the
affirmative defense and a chance to rebut it. See, e.g., Servpro Indus.,
Inc. v. Schmidt, 905 F. Supp. 475, 482 (N.D. Ill. 1995) (collecting
authorities). Rule 8(c) provides that a party must set forth affirmative
defenses in a responsive pleading, and such pleadings are subject to all
the pleading requirements of the Federal Rules of Civil Procedure. See,
e.g., Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294
(7th Cir. 1989). The Court may strike from any pleading any insufficient
defense. See Fed.R.Civ.P. 12(f). Affirmative defenses must set forth a
"short and plain statement" of the basis for the defense. Fed.R.Civ.P.
8(a); accord Heller, 883 F.2d at 1294. An allegation must include either
direct or inferential allegations respecting all material elements of the
defense asserted. See, e.g., Renalds v. S.R.G. Rest. Group, LLC, 119 F.
Supp.2d 800, 802 (N.D. Ill. 2000) (collecting authorities). Simply naming
a legal theory without indicating how it is connected to the case at hand
is not sufficient to withstand a motion to strike. Id. at 803. Courts
generally disfavor motions to strike affirmative defenses because they
potentially serve only to cause delay. See Heller, 883 F.2d at 1294.
A. First Affirmative Defense
The first affirmative defense states that "[t]his Court has no
jurisdiction of counts n through VII in that each of the state law claims
[sic] are preempted by federal labor law." (D.E. 4 at 23.) Rule 8(a)
requires a short and plain statement of the basis for the defense, and
Defendants here do not provide one. Specifically, Defendants do not
identify which federal labor law doctrine(s) preempt the Plaintiffs'
state law claims or how the state law claims are preempted by federal labor law. Affirmative defense one fails to give the Plaintiffs
sufficient notice of the defense alleged and will not meaningfully
provide notice concerning the preemption issue(s) for the parties going
forward. This lack of clarity and notice already has bred unnecessary
confusion and caused a waste of resources. Plaintiffs in their motion to
strike have written at length to attempt to establish that various labor
preemption doctrines (which encompass some, but not all, of the various
potential preemption doctrines that might conceivably be invoked) cannot
possibly preclude Plaintiffs' state law claims. Defendants do not even
attempt to address these arguments. Instead, Defendants assert that
preemption is a jurisdictional concept, such that Defendants can assert it
at any time and that, in any event, the facts in the case may not bear
out as Plaintiffs allege. Defendants' assertions may or may not be
correct (the Court need not resolve those issues at this time), but that
is not the point. Defendants cite no authority whatsoever for the notion
that the parties should waste time and money litigating in the dark about
which of the many federal labor preemption doctrines may be applicable in
a case-to the detriment of the parties and the Court in terms of the
meaningful framing of issues, and (as to the parties at least) at the
cost of legal expenses that will be unnecessarily incurred in discovery
and briefing over non-issues.
In summary, affirmative defense one is inadequately pleaded under the
requirements of Rule 8. Affirmative defense one will be dismissed without
prejudice to enable Defendants to correct that technical pleading
deficiency, so as to provide the litigants and Court with some reasonable
guidance as to which labor law preemption doctrines are potentially at
play. See, e.g., Renalds, 119 F. Supp.2d at 802-03 (collecting
authorities).*fn1 B. Second and Third Affirmative Defenses
Defendants allege in affirmative defense two that Plaintiffs' Count III
accrued, "if ever," more than one year before the commencement of this
action and further allege in affirmative defense three that Plaintiffs'
Count VI accrued, "if ever," more than two years before the commencement
of this action. Defendants also provide specific provisions of Illinois
law that they contend support their statute of limitations defenses.
These affirmative defenses are sufficiently pleaded to meet the
requirements of Rule 8(a). Affirmative defenses two and three provide
Plaintiffs with proper notice of the defenses alleged and the inclusion
of the phrase "if ever" does not diminish the effectiveness of the
pleadings. Rule 8(e)(2) provides that "[a] party may set forth two or more
statements of a claim or defense alternately or hypothetically either in
one count or defense or in separate counts or defenses." Defendants may
deny that the alleged facts underlying the respective claims ever
occurred and, alternatively, assert that even if the claims accrued, that
the respective specific statutes of limitations have run on the claims.
The Court denies the Plaintiffs' motion to strike affirmative defenses
two and three.
The Court grants Plaintiffs' motion to strike affirmative defense one
and strikes it without prejudice. The Court denies the motion to strike
affirmative defenses two and three.