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Thomas, v. Exxon Mobil Corp.

February 11, 2009


The opinion of the court was delivered by: Judge Ronald A. Guzmán


Jesse Thomas has sued Exxon Mobil Corp. ("Exxon") for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. Before the Court is Thomas' motion to strike Exxon's eighteen affirmative defenses pursuant to Federal Rule of Civil Procedure ("Rule") 12(f). For the reasons provided below, the Court grants in part and denies in part the motion.


On June 27, 2005, Jesse Thomas, a maintenance mechanic for Exxon, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") complaining of discriminatory treatment and harassment by his supervisor, Pat O'Reilly. (Compl. ¶ 15.) On April 13, 2006, Thomas filed a complaint in the U.S. District Court for the Northern District of Indiana. (Id. ¶¶ 16-17.) The case was transferred to this district and dismissed with prejudice, and the dismissal ruling was posted on the court's electronic docket on August 6, 2007. (Id. ¶¶ 18, 23, 24.) That same day, Thomas was suspended from work for three days. (Id. ¶ 25.) During July and August 2007, Thomas also received several letters of reprimand from Exxon for "continued unsatisfactory work performance." (Id. ¶¶ 19-27.) On August 10, 2007, he returned to work, but on August 28, 2007, he was officially terminated. (Id. ¶¶ 28-30.) On December 19, 2007, after he filed another EEOC charge based on retaliation and received a right-to-sue notice, Thomas filed this suit.


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). Courts in this district have traditionally utilized a three-part inquiry when examining affirmative defenses subject to a motion to strike: (1) "whether the matter is appropriately pleaded as an affirmative defense" -- "[o]nly matters that deserve a clear 'no' answer will be stricken to make the pleadings more concise"; (2) "if it is adequately pleaded under the requirements of Rules 8 and 9" -- if "inadequately pleaded, [the affirmative defense] will be dismissed without prejudice to enable defendant[] to correct that technical deficiency"; (3) whether the affirmative defense meets the Rule 12(b)(6) standard -- "[i]f it is impossible for defendant to prove a set of facts in support of the affirmative defense that would defeat the [c]omplaint, the matter will be stricken as legally insufficient." Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 737 (N.D. Ill. 1982); see H.R.R. Zimmerman Co. v. Tecumseh Prods. Co., No. 99 C 5437, 2002 WL 31018302, at *2-3 (N.D. Ill. Sept. 9, 2002); Ocean Atl. Dev. Corp. v. Willow Tree Farm, L.L.C., No 01 C 5014, 2002 WL 485387, at *2 (N.D. Ill. Mar. 29, 2002).

Affirmative defenses are subject to the pleading requirements of 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). Under Rule 12(b)(6), a court must accept all factual allegations as true and draw all reasonable inferences in favor of the pleader. Fed. R. Civ. P. 12(b)(6); Renalds, 119 F. Supp. 2d at 802.

However, it is improper to assert something as an affirmative defense that is nothing more than a denial of an allegation contained in the complaint. Rivertree Landing, L.L.C. v. Murphy, 246 F.R.D. 667, 668 (N.D. Ill. 2007); Instituto Nacional de Comercializacion Agricola (Indeca) v. Cont'l Ill. Nat'l Bank & Trust Co., 576 F. Supp. 985, 989 (N.D. Ill. 1983). "The basic concept of an affirmative defense is an admission of the facts alleged in the complaint, coupled with the assertion of some other reason defendant is not liable." Indeca, 576 F. Supp. at 989 (emphasis in original).

A. Affirmative Defenses III, IV, X, XI, XII, XIV, XV and XVIII

Plaintiff has moved to strike Affirmative Defense III (no prima facie case; existence of non-discriminatory reasons for termination); IV (same decision would have been made regardless of plaintiff's complaints); X (legitimate, non-discriminatory reasons for termination); XI (plaintiff was not denied benefits to which he was entitled); XII (good faith; no intentional retaliation); XIV (conduct was not willful); XV (challenged practices were job-related, consistent with business necessity and not causally connected to protected activity); and XVIII (no malice or reckless indifference on part of defendant). Because each of these affirmative defenses is nothing more than a mere denial of the allegations in the complaint, they are inappropriately pleaded as affirmative defenses, and the Court grants the motion to strike them.

See Rivertree Landing, 246 F.R.D. at 668; Indeca, 576 F. Supp. at 989. Therefore, the Court strikes Affirmative Defenses III, IV, X, XI, XII, XIV, XV and XVIII with prejudice.

B. Affirmative Defenses I and V

Defendant's Affirmative Defense I states only that "[s]ome or all of the allegations in Plaintiff's claim fail to state a claim upon which relief can be granted." (Def.'s Answer 10.) This Court has made clear that an affirmative defense may not simply restate the standard for dismissal under Rule 12(b)(6), see, e.g., Ring v. Bd. of Educ. Cmty. Sch. Dist. No. 60, No. 03 C 7397, 2004 WL 1687009, at *2 (N.D. Ill. July 27, 2004), and the Court holds that such a conclusory statement is insufficient to allege an affirmative defense. The Court strikes Affirmative Defense I without prejudice.

The same reasoning applies to Affirmative Defense V in which defendant states that plaintiff "by his own acts errors, omissions, and conduct is barred and estopped from any recovery in this action." (Def.'s Answer 11.) This is merely a recitation of the "estoppel" affirmative defense listed among other illustrative examples in Rule 8(c). To properly assert an estoppel affirmative defense, the defendant must, at the very least, provide the opposing party notice of the basis for the application of estoppel. See, e.g., Bobbit, 532 F. Supp. at 738; Tome Engenharia E. Transportes, Ltd. v. Malki, No. 94 C 7427, 1996 WL 172286, at *11 (N.D. Ill. April 11, 1996); Gen. Elec. Capital Corp. v. Munson ...

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