Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lacey Prewitt v. United States

October 26, 2011

LACEY PREWITT, PLAINTIFF,
v.
UNITED STATES, ERVIN GARTNER, JIM BUSHMAN, ANUJ PARTKH, ) AKAL SECURITY, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge:

MEMORANDUM OPINION

This matter comes before the Court on the motion of Plaintiff Lacey Prewitt to strike all affirmative defenses asserted by Defendants Ervin Gartner, Akal Security, Jim Bushman, and Anuj Parikh, pursuant to Federal Rule of Civil Procedure 12(f). For the reasons set forth below, the motion is granted. The Court grants the Defendants leave to amend their answers in a manner consistent with the following discussion.

BACKGROUND

On July 21, 2010, Plaintiff Lacey Prewitt ("Prewitt") filed an eleven count second amended complaint against the Defendants, alleging various torts and violations of 42 U.S.C. §1983. Defendants Jim Bushman and Anuj Parikh (collectively, the "Federal Defendants") asserted three affirmative defenses to Prewitt's claims*fn1 .

Defendants Ervin Gartner and Akal Security (collectively, the "Gartner Defendants") asserted eleven affirmative defenses to Prewitt's claims. Prewitt now seeks to strike all of the Defendants' affirmative defenses.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(f) permits a court to strike defenses that are insufficient on the face of the pleadings. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). Because motions to strike can be used as delay tactics, they are generally not a favored part of motion practice. United States v. 416.81 Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975). However, if legal implications can be drawn from uncontroverted facts within the pleadings, such motions can be useful tools to examine the sufficiency of asserted defenses. See id.

Affirmative defenses must comply with Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement" of the defense. Heller, 883 F.2d at 1294.However, "[b]are bones conclusory allegations" are not permitted. Id. at 1295. An affirmative defense that raises substantial questions of law or fact will survive a motion to strike. 416.81 Acres, 514 F.2d at 631. Moreover, if on the face of the pleadings it appears that a set of facts could be proven that would establish the defense, the party asserting the defense must be provided an opportunity to prove the allegations. Id.

With these principles in mind, we turn to Prewitt's instant motion.

DISCUSSION

I. Gartner Defendants

Prewitt moves to strike the eleven affirmative defenses asserted by the Gartner Defendants. Because the Gartner Defendants do not contest Prewitt's motion to strike their first, third, fifth, sixth, or eleventh defenses, the Court grants Prewitt's motion with respect to these defenses.

Additionally, because the Gartner Defendants concede that their second, seventh, and eighth defenses are insufficiently pled, the Court grants Prewitt's motion to strike these defenses. However, the Gartner Defendants maintain that they reserve the right to reassert these defenses as new information is gathered through discovery. Generally, a party waives any affirmative defense not raised in its first responsive pleading. Castro v. Chi. Hous. Auth., 360 F.3d 721, 735 (7th Cir. 2004). However, when justice so requires, a court has the discretion to allow a defendant to amend its answer to assert an affirmative defense not previously raised. Fed. R. Civ. P. 15(a)(2); Venters v. City of Delphi, 123 F.3d 956, 968 (7th Cir. 1997). Therefore, any future requests by the Gartner Defendants to amend their answer to include these additional defenses will be evaluated by the Court under Rule 15 at the time such requests are made.

Finally, the Gartner Defendants' do not challenge Prewitt's motion to strike their fourth, ninth, and tenth affirmative defenses, but instead seek leave to amend these defenses. A court should freely grant leave to amend the pleadings in the interests of justice. Fed. R. Civ. P. 15(a)(2). Though Prewitt has not challenged the sufficiency ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.