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Board of Trustees, Plumbers' Local Union No. 93 UA v. S&K Plumbing

August 11, 2009

BOARD OF TRUSTEES, PLUMBERS' LOCAL UNION NO. 93 UA, ET AL., PLAINTIFF,
v.
S&K PLUMBING, CO., DEFENDANT.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiff Board of Trustees of the Plumbers' Local Union No. 93, et al. (the "Union") moves to strike a portion of Defendant S & K Plumbing, Co.'s ("S & K's") Answer and its sole affirmative defense under Federal Rule of Civil Procedure 12(f). The motion is denied for the reasons set forth below.

I. BACKGROUND

The Union filed a complaint (the "Complaint") alleging that S & K failed to make benefit contributions to the Union over a three-year period between 2005 and 2008. As a remedy, the Union seeks damages along with audit and attorneys' fees under the authority of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132.

II. ANALYSIS

The Union argues that S & K's answer to Paragraph 9 of the Complaint should be stricken because it does not conform to Federal Rule of Civil Procedure 8(b) which requires a responsive pleading to admit an allegation, deny it, or state in the alternative that the respondent lacks sufficient information to respond to the allegation. See Fed. R. Civ. P. 8(b). S & K's disputed response and the relevant allegation appear below:

Pursuant to the provisions of the Collective Bargaining Agreement and Trust Agreements, employers who fail to submit their monthly contribution reports and contributions to the INDUSTRY FUND on a timely basis are responsible for the payment of liquidated damages equal to 10% of the amount unpaid and interest at the rate of 1% per month for each month that contributions remain unpaid, plus any reasonable attorneys [sic] fees and costs of maintaining suit.

Compl. ¶ 9.

Defendant S & K Plumbing Co. denies the allegations of paragraph 9 as to the terms of the Collective Bargaining Agreement, and neither admits nor denies the allegations as to the Trust Agreements as neither it nor its principal have ever seen a copy of said Trust Agreements.

Answer ¶ 9. While S & K's answer to paragraph 9 of the Complaint does not recite the language in Rule 8(b)(5) (instructing a party that "lacks knowledge or information sufficient" to admit or deny an allegation to so state), the obvious implication of S & K's averment that it has not "ever seen a copy of the said Trust Agreements" is that S & K lacks the necessary information to form a belief as to the truth of the Union's allegation. Fed. R. Civ. P. 8(b)(5). S & K's answer to paragraph 9 of the Complaint therefore conforms with Rule 8(b) and the Union's motion to Strike the paragraph is accordingly denied.

The Union also moves to strike S & K's affirmative defense, arguing that it contains "factually incorrect information," restates the denials in the answer, and cannot be sustained because S & K did not admit the Union's allegations. Mot. 3. Additionally, the Union asserts in reply that S & K's affirmative defense must fail because it cannot withstand a challenge under Rule 12(b)(6).*fn1

The Union's arguments for striking S & K's affirmative defense are inapposite. First, the Union's contention that S & K's Answer misrepresents the date on which the Union stopped paying certain welfare benefits to S & K's employees as "early on in calendar year 2008," (Answer ¶ 2) when the actual dates were in June and July, is a factual dispute*fn2 that cannot and need not be resolved at the pleading stage, where all allegations are considered true. See Renalds v. S.R.G. Rest. Group, 119 F. Supp 2d 800, 802 (N.D. Ill. 2000) (when reviewing a motion to strike "the court must accept all factual allegations as true").

The Union's contention that S & K's affirmative defense is void as redundant is also misplaced. While portions of S & K's affirmative defense may be repetitive, S & K asserts facts in the affirmative defense that were not contained in its Answer to the allegations in the Complaint. Parties are permitted to state their pleadings in the manner which they prefer so long as they conform to the Federal Rules of Civil Procedure; the Union points to no authority that says otherwise. Moreover, the court declines to exercise its discretion under Rule 12(f) to excise the portions of S & K's affirmative defense that the Union finds duplicative because the redundant allegations do not clutter the case. See Heller Fin., Inc. v. ...


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