The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
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. ¶¶
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.
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.
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 ...