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Rebecca Wylie, Individually On Behalf of Herself and All Other v. For Eyes Optical Company

November 10, 2011


The opinion of the court was delivered by: James F. Holderman, Chief Judge:


On March 15, 2011, plaintiff Rebecca Wylie ("Wylie") filed this lawsuit against defendant For Eyes Optical Company ("For Eyes") on behalf of herself and all other persons similarly situated, alleging that For Eyes violated the Americans with Disabilities Act ("ADA"),

42 U.S.C. §§ 12101, et. seq., by "failing to provide full and equal access to eye exams by ambulatory impaired disabled individuals who depend upon the use of wheelchairs who are seeking vision care services." (Dkt. No. 1 ("Compl.") ¶ 15.) For Eyes filed its Answer on May 16, 2011, including eight affirmative defenses. (Dkt. No. 13 ("Ans.").)

Pending before the court is "Plaintiff's Motion to Strike Affirmative Defenses." (Dkt. No. 15 ("Wylie's Mot.").) For the reasons set forth below, Wylie's motion is granted in part and denied in part. For Eyes' first, third, and sixth defenses are stricken without prejudice. For Eyes is granted leave to file an Amended Answer on or before December 1, 2011, setting forth its "failure to state a claim" defense and "lack of ownership or control" defense in more detail consistent with this order, should it desire to do so. Counsel are requested to meet pursuant to Rule 26(f) and jointly file a Form 52 on or before December 9, 2011. This case is set for a report on status and entry of a scheduling order on December 15, 2011 at 9:00 a.m. The parties are encouraged to discuss settlement.


The following background facts are set forth as alleged in Wylie's Complaint.

For Eyes is a Pennsylvania corporation in the business of providing optical examinations to the public at more than 140 optometry center stores located throughout the United States. (Compl. ¶ 4.) Wylie, a quadriplegic individual who is dependant on the use of a wheelchair, was denied a comprehensive vision exam at two For Eyes locations on January 27, 2011, because she was not able to independently move herself from her wheelchair onto an examination chair. (Id. ¶¶ 3, 20.) For Eyes employees also told Wylie that the exam chairs could not be moved to permit Wylie's wheelchair to be positioned in place of the exam chair for purposes of accessing the examination equipment. (Id. ¶ 20.) An employee at For Eyes' Vernon Hills store told Wylie that no other For Eyes location could accommodate Wylie's needs. (Id.)


For Eyes' Answer includes eight separate assertions under the heading "affirmative defenses," including:(1) failure to state a claim for which relief may be granted; (2) lack of standing; (3) third-party contribution; (4) barrier removal not "readily achievable"; (5) estoppel and waiver; (6) lack of intent; (7) mootness; and (8) statute of limitations. (Ans. 13-14.) Wylie has moved to strike each of these defenses pursuant to Federal Rule of Civil Procedure 12(f).

Under Rule 12(f), a court may strike from a pleading any "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored in this circuit because of their potential to cause delay in litigation; however, they will be granted where they serve to remove "unnecessary clutter" from a case. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).

As pleadings, affirmative defenses are subject to the pleading requirements of the Federal Rules of Civil Procedure. Id. Accordingly, to constitute a sufficient pleading, an affirmative defense must include a "short and plain statement" of the defense. Id. (quoting Fed. R. Civ. P. 8(a)). "[B]are bones conclusory allegations" that fail to address the necessary elements of the alleged defense are insufficient on the face of the pleading. Id. at 1294-95. In reviewing a motion to strike, "the court must accept all factual allegations as true and draw all reasonable inferences in favor of the pleader." Renalds v. S.R.G. Rest. Group, 119 F. Supp. 2d 800, 802 (N.D. Ill. Nov. 2, 2000) (Alesia, J.).


1. Failure to State a Claim

For Eyes' first alleged affirmative defense states, in its entirety, "Plaintiff's Complaint and each purported cause of action asserted against Defendant therein fails to set forth facts sufficient to constitute a claim and/or state a claim upon which relief may be granted." (Ans. 13, ¶ 1.) Wylie argues that "failure to state a claim" is not a proper affirmative defense, and that this argument should have been "raised through a Rule 12(b)(6) motion to dismiss" instead. (Wylie's Mot. 5.)

The court agrees that "failure to state a claim" is not technically an affirmative defense, "because it does not raise any matter outside of Plaintiff's complaint." LaSalle Bank Nat'l Ass'n. v. Paramont Props., 588 F. Supp. 2d 840, 860 (N.D. Ill. Nov. 24, 2008) (St. Eve, J.). Federal Rule of Civil Procedure 12(b) specifically mandates, however, that "[e]very defense to a claim for relief . . . [including "failure to state a claim upon which relief can be granted"] must be asserted in the responsive pleading if one is required." Fed. R. Civ. P. 12(b). For Eyes' error in terming its first defense an "affirmative defense," rather than a mere "defense," is inconsequential and does not warrant striking this defense from For Eyes' Answer. Accord LaSalle Bank, 588 F. Supp. 2d at 860 (noting "Form 30 . . . of the Federal Rules of Civil Procedure's ...

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