The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This case is before the Court on the Plaintiff's motion to strike portions of the Defendant's first amended answer, defenses and counterclaims [d/e 19] and the Plaintiff's motion to dismiss the Defendant/Counter-Plaintiff's first counterclaim in its first amended answer [d/e 21].
On May 3, 2006, Plaintiff David Spengler filed a complaint asserting that Defendant Meadowbrook Meat Company ("MBM") refused to recall him to active service as a truck driver because he exercised his Illinois Worker's Compensation rights. MBM subsequently filed a first answer, affirmative defenses and a two-count counterclaim against Spengler. Spengler has moved to strike portions of MBM's pleadings on the basis they are legally insufficient. He has also filed a motion to dismiss MBM's first counterclaim.
A court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." See Fed. R. Civ. P. 12(f). Some courts have observed that motions to strike are sometimes disfavored because they are often employed to create delay. See United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975), Van Schouwen v. Connaught Corp., 782 F. Supp. 1240, 1245 (N.D. Ill. 1991). The Northern District observed:
Indeed, motions to strike can be nothing other than distractions. If a defense is clearly irrelevant, then it will likely never be raised again by the defendant and can be safely ignored. If a defense may be relevant, then there are other contexts in which the sufficiency of the defense can be more thoroughly tested with the benefit of a fuller record-such as on a motion for summary judgment. Accordingly, courts are typically reluctant to decide disputed or substantial issues of law on a motion to strike. Schouwen, 782 F. Supp. at 1245.
Spengler states that the primary dispute between the parties concerns whether it is proper for MBM to assert defenses using one sentence conclusory statements. Spengler also notes that there is no distinction between the pleading standards for defenses and complaints. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989) (noting that affirmative defenses are pleadings and are therefore subject to the pleading requirements of the Federal Rules of Civil Procedure, such as Rule 8(a)'s "short and plain statement" requirement). Spengler further alleges that a plaintiff is not entitled to plead only conclusions. However, the Seventh Circuit has emphasized that a plaintiff is not required to do much more than that. See Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005) ("Plaintiffs need not plead facts; they need not plead law; they plead claims for relief.").
Spengler claims that he disagrees with MBM's assertion that the best method of approaching a situation like this is to allow a defendant to plead defenses and then later withdraw them if the defendant determines there are insufficient facts to support the defense. He asserts that if there are insufficient facts known to support a defense, then the defense should not be pleaded. Citing Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997), Spengler notes that an affirmative defense is not subject to waiver if at the time of the answer, a defendant did not know of the facts justifying pleading that affirmative defense. That case also holds, "Once the availability of an affirmative defense is reasonably apparent, the defendant must alert the parties and the court to his intent to pursue that defense." Id. Thus, it is clearly better for a defendant to assert a defense as soon as it appears possible that it might be relevant. Otherwise, the defendant may forfeit that right.
Spengler contends that several portions of MBM's pleadings should be stricken because they are legally insufficient. He alleges that MBM's answer wherein it asks for attorney's fees should be stricken because it is only seeking such fees in the event that they become available pursuant to Federal Rule of Civil Procedure 11.
Regarding MBM's defenses, the Plaintiff notes that its first defense states: "[to] the extent that Plaintiff's claims involve transactions or events or seeks damages for periods of time outside the applicable statutory limitations periods, plaintiff's claims are barred." Spengler asserts this defense should be stricken because MBM does not currently have a good faith basis to believe the claim is outside the statute of limitations.
Spengler notes that MBM's second defense states, "Defendant engaged in no unlawful employment practices or any other discriminatory employment actions." Spengler asserts the statement does not provide the grounds for which the defense rests and should be stricken.
MBM's third defense states, "Plaintiff's claims may be barred by the doctrines of estoppel, waiver, or unclean hands." Once again, Spengler claims that the statement does not provide the grounds for which the defense rests and should be stricken. He further asserts that it is improper to plead that a claim "may" be barred. If MBM has ...