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July 26, 2004.

DR. JANET. E. RING, Plaintiff,

The opinion of the court was delivered by: RONALD GUZMAN, District Judge


Plaintiff, Dr. Janet E. Ring ("Plaintiff") has sued defendants Board of Education Community School District No. 60 ("the Board") and Anita Hanna ("Hanna") (collectively "Defendants"), Jeff McBride, Fernando Shipley, and Marvin Reddick for deprivation of her equal rights pursuant to 42 U.S.C. § 1983 ("§ 1983"). Defendants have raised Affirmative Defenses I-IV, and before the court is Plaintiff's motion to strike those affirmative defenses pursuant to Federal Rule of Civil Procedure ("Rule") 12(f). For the reasons provided in this Memorandum Opinion and Order, the motion is granted in part and denied in part. FACTS

On July 11, 2000, Plaintiff was hired by the seven elected members of the Board as Associate Superintendent for Curriculum and Instruction. (Defendants' Answer and Affirmative Defenses ¶ 6 ("Defs.' Answer").) Plaintiff's position reported directly to the Superintendent of School, who is also the Chief Executive Officer of the Board, and provided Plaintiff with a wide range of responsibilities, including administering a budget in excess of $6,000,000 and the supervision of eighteen professional and clerical staff members. (Id. ¶¶ 7-8.)

  Following the April 2003 School Board elections, the racial makeup of the Board was composed of four African Americans, who are the defendants in this case, and three non-African Americans. (Id. ¶ 9.) Plaintiff is Caucasian. (Id. ¶ 4.) In June 2003, defendant Shipley moved and defendant Reddick seconded the motion to terminate Plaintiff's position as Associate Superintendent of Curriculum and Instruction; however the Board's attorney advised Defendants to defer acting immediately on this motion. (Id. ¶¶ 12-13.)

  On September 9, 2003, defendants voted to remove Plaintiff from her position. (Id. ¶ 14.) The three non-defendant Board members voted against this removal, and the Superintendent of Schools also supported Plaintiff's continued appointment as Associate Superintendent of Curriculum and Instruction. (Id. ¶¶ 11, 14.) Plaintiff alleges there was no legitimate nondiscriminatory basis for the Board to fire or transfer her. (Id. ¶ 10.) Plaintiff also alleges that during the course of the removal process, one of the defendants stated to a staff member that the Board could not initially hire a black person to replace plaintiff, as that would further demonstrate that Plaintiff's removal was an act of racism. (Id. ¶ 16.)

  Plaintiff was then transferred to a newly created position under the title of Associate Superintendent/Program Development which consisted of a smaller staff, office, and budget than Plaintiff's previous job did. (Id. ¶ 17.) Plaintiff also participated in the development of the job description and title of this new position. (Id.) Plaintiff alleges that the transfer was a demotion and was not accompanied by a pre-demotion hearing. (Id. ¶¶ 18, 21.)


  The proper procedure by which a plaintiff may challenge an affirmative defense is through a motion to strike. Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 736-37 (N.D. Ill. 1982). In a motion to strike, pursuant to Rule 12(f), "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are not generally favored or granted unless the plaintiff can prove that the defense is insufficient and could not, after the development of a fuller record, succeed in defeating the plaintiff's claim. Lirtzman v. Spiegel, Inc., 493 F. Supp. 1029, 1031 (N.D. Ill. 1980). Before a motion to strike affirmative defenses can be granted, the court must be convinced that no questions of fact exist, and any questions of law are clear and undisputed. Id.

  Courts in this district have traditionally applied a three-part inquiry when examining affirmative defenses subject to a motion to strike: (1) whether the matter is properly and concisely pleaded as an affirmative defense; (2) whether the matter is adequately pleaded under the requirements of Fed.R.Civ.P. 8 and 9; (3) whether the affirmative defense meets the Rule 12(b)(6) standard, where the defendants can prove a set of facts in support of the affirmative defense that would defeat the complaint. Bobbitt, 532 F. Supp. at 737.

  Rule 8(c) lists nineteen specific affirmative defenses to a complaint, and further includes a catch-all reference for "any other matter constituting an avoidance or affirmative defense." Fed.R.Civ.P. 8(c); see Maloney v. Rice, No. 86 C 6026, 1988 WL 53175, at *1 (N.D. Ill. May 16, 1988). "In answering a complaint and asserting affirmative defenses under Fed.R. Civ. P. 8(c), a defendant concedes that the complaint states a claim, but contends that other facts nonetheless defeat recovery." Flasza v. TNT Holland Motor Express, Inc., 155 F.R.D. 612, 613 (N.D. Ill. 1994). A properly pleaded affirmative defense raises matters outside the scope of the plaintiff's prima facie case. Sayad v. Dura Pharms., Inc., 200 F.R.D. 419, 422 (N.D. Ill. 2001).

  Affirmative defenses are subject to all the pleading requirements under the Federal Rules of Civil Procedure. Fed.R.Civ.P. 8(c); Renalds v. S.R.G. Rest. Group, 119 F. Supp.2d 800, 802 (N.D. Ill. 2000). Additionally, under Rule 12(b)(6), the court accepts all factual allegations as true and draws all reasonable inferences in favor of the pleader. Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850, 853 (7th Cir. 1999). While the affirmative defense need only set forth a short and plain statement of the defense asserted, if it is insufficient on its face or consists of merely a "bare bones, conclusory allegation," it must be stricken. Flasza, 155 F.R.D. at 612.

  A. Affirmative Defense I ("Failure to State a Claim")

  With regard to Affirmative Defense I, Defendants argue that while it is proper to raise the failure to state a claim by a motion under Rule 12(b)(6), that is not the only way. (Defs.' Resp. Pl.'s Mot. Strike Affirm. Defenses ("Defs. Resp.") ¶¶ 3-4.) Defendants indicate that Appendix Form 20 of the Appendix to the Federal Rules of Civil Procedure ("Form 20") states that "a failure to state a claim upon which relief can be granted" is an appropriate defense. Within the Northern District of Illinois, there has been some disagreement as to whether a failure to state a claim may properly be raised as an affirmative defense. Instituto Nacional de Comercializacion Agricola (Indeca) v. Cont'l Ill. Nat'l Bank & Trust Co., 576 F. Supp. 985, 991 (N.D. Ill. 1983).

  Some courts in this district have held that an allegation of failure to state a claim is referred to as merely a "defense" and not an "affirmative defense" in Form 20, and is therefore not a true affirmative defense. See Sayad, 200 F.R.D. at 422-23. Such courts state that failing to state a claim is an ordinary defense and merely a denial of the plaintiff's complaint, while affirmative defenses require the defendant to raise matters outside the scope of the plaintiff's ...

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