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Ana Palomares, Jaime Camarena v. Second Federal Savings and Loan Association of Chicago D/B/A Second Federal Savings

May 25, 2011


The opinion of the court was delivered by: Judge Sharon Johnson Coleman

Magistrate Judge Jeffrey Cole


This matter is before the Court on motions by Plaintiffs Jaime Camarena, Florinda Munoz, Ana Palomares, Silvia Rosales, Liliana Serrano, Josephine Sanchez, and Gilbert Sanchez (collectively the "Plaintiffs") to strike certain affirmative defenses asserted by Defendant Second Federal Savings and Loan Association of Chicago ("Second Federal") pursuant to Federal Rule of Civil Procedure 12(f). For the reasons that follow, the Court grants Plaintiffs' motions in part and denies them in part.


On September 24, 2010, Plaintiffs filed separate complaints each alleging they were subjected to various discriminatory employment practices by Second Federal.*fn1 Plaintiffs are all of Latino descent and were among twenty employees terminated by Second Federal on September 8, 2009. Sixteen of the twenty terminated employees were of Latino descent. The terminated employees who met the definition of "Executive Management" were entitled to receive between eight and twenty-six weeks of severance compensation depending upon their length of employment. Those employees who did not meet this definition were entitled to receive between two to four weeks of severance pay. The four non-Latinos were the only terminated employees who met the definition of "Executive Management."

Plaintiffs filed separate actions alleging, inter alia, that Second Federal's definition of "Executive Management" had a disparate impact on Latino employees and was specifically designed to limit the severance compensation of Latino employees. Certain Plaintiffs also alleged they were wrongfully discharged in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") or the Age Discrimination in Employment Act of 1976 ("ADEA"). The Court consolidated the seven actions on September 8, 2009. Plaintiffs now move to dismiss certain of Second Federal's affirmative defenses claiming they are either basic denials of allegations contained in the Complaint or fail to comply with the pleading requirements under Federal Rule of Procedure 8(a).


A district court may strike an insufficient affirmative defense pursuant to Rule 12(f). Heller Fin'l Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). A motion under Rule 12(f) must be filed "within 21 day after being served with the pleading" and allows a court to strike any "redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). Affirmative defenses are pleadings and, therefore, are subject to all of the pleading requirements of the Federal Rules of Civil Procedure. Heller, 883 F.2d at 1294. Thus, affirmative defenses must assert a "short and plain statement" of the defense as required by Rule 8(a). Id. Affirmative defenses must also contain sufficient factual matter, accepted as true, to state an affirmative defense to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1939, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 156 L. Ed. 2d 929 (2007)). 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 that the defendant is not liable. See, e.g., Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 736 (N.D. Ill. 1982). Conclusory, vague, and unsupported affirmative defenses that do not meet the requirements imposed by Rule 8(a) are legally insufficient. Heller, 883 F.2d 1294-95. For further guidance, courts in this district employ a three-part test to examine the sufficiency of an affirmative defense to determine whether: (1) the matter is properly pled; (2) the defense complies with Rule 8; and (3) the defense withstands a Rule 12(b)(6) challenge. Bobbitt, 532 F. Supp. at 737.

As a general rule, motions to strike affirmative defenses are disfavored because of their tendency to delay the proceedings. Heller, 883 F.3d at 1294. Such motions will only be granted where they remove unnecessary clutter from the case or where the affirmative defense is insufficient on the face of the pleadings. Id. Even where a motion to strike is granted, leave to amend the pleading is to be freely granted as justice requires. FED. R. CIV. P. 15(a).

Additionally, striking an affirmative defense does not necessarily preclude the party from asserting or arguing its substantive merits later in the case. Instituto Nacional De Comerializacion Agricola (Indeca) v. Cont'l Ill. Nat'l Bank & Trust Co., 576 F. Supp. 985, 988 (N.D. Ill. 1983).


On March 11, 2011, Second Federal filed separate answers and affirmative defenses to each of the seven actions consolidated before this Court.*fn2 (Dkt. Nos. 43-49.) Second Federal asserted the same nine affirmative defenses with each answer. Plaintiffs filed separate motions on behalf of each Plaintiff for leave to strike eight of the nine affirmative defenses on April 4, 2010. (Dkt. No. 52.) While Plaintiffs' motions exceeds the 21 day limit under Rule 12(f), Plaintiffs notified the Court and Second Federal of their intention to file the instant motions in the parties' joint status report filed on March 29, 2011. (Dkt. No. 50. p. 9.) The Court grants the Plaintiffs leave to file the motions and turns now to consider the merits of each motion.

Plaintiffs argue that certain affirmative defenses are merely denials of the Complaint allegations and that others lack the factual support required by Rule 8(a). In response, Second Federal contends that its affirmative defenses are properly pled. Second Federal further argues that Plaintiffs' motion to strike has little purpose or point as Second ...

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