United States District Court, C.D. Illinois, Springfield Division
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on the Motion to Strike Affirmative Defenses (d/e 10) filed by Petitioner Acuity Optical Laboratories, Inc. The Motion is GRANTED IN PART and DENIED IN PART. The Court strikes Affirmative Defenses No. 1, 2, 4, 7, 11, and 12 without prejudice and with leave to amend. The Court sua sponte strikes Affirmative Defense No. 15 with prejudice. The Court does not strike Affirmative Defenses No. 5, 8, 9, 10, 13, and 14.
Petitioner manufactures ophthalmic goods, including digitally manufactured freeform ophthalmic lenses. In July 2014, Petitioner filed a Verified Petition for Preliminary Injunction, Declaratory Judgment, Damages, and Permanent Injunctive Relief against Respondent, Davis Vision, Inc., an administrator of vision benefit plans. Petitioner alleges that Respondent's requirement that providers in its network send any eyeglass manufacturing orders to an ophthalmic lens laboratory affiliated with Respondent constitutes: the illegal restraint of trade in violation of Section 1 of the Sherman Antitrust Act (Count 1); the illegal monopolizing of trade in violation of Section 2 of the Sherman Antitrust Act (Count 2); the illegal tying agreements in violation of Sections 1 and 2 of the Sherman Antitrust Act (Count 3); an agreed boycott in violation of Section 3 of the Clayton Antitrust Act (Count 4); violations of the Illinois Antitrust Act (Counts 5 through 8); violations of the Illinois Insurance Code (Counts 9 and 10); and a tortious interference with Petitioner's prospective business advantage (Count 11). Petitioner alleges that the Court has subject matter jurisdiction over this action by way of both federal question jurisdiction and diversity jurisdiction. See Petition ¶ 17, citing 28 U.S.C. § 1331, 1332.
In September 2014, Respondent filed its Answer and Affirmative Defenses (d/e 9). Respondent raises 15 affirmative defenses. Petitioner has moved to strike Affirmative Defenses No. 1, 2, 4, 5, and 7 through 14.
II. LEGAL STANDARD
When a defendant responds to a pleading, the defendant must affirmatively state any avoidance or affirmative defense. Fed.R.Civ.P. 8(c). Rule 8(c)(1) lists several affirmative defenses, including estoppel, laches, statute of limitations, and waiver. Fed.R.Civ.P. 8(c)(1). However, the list is not exhaustive. See Native Am. Arts, Inc. v. Waldron Corp., 254 F.Supp.2d 1041, 1045 (N.D. Ill. 2003); 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1271 (3d ed. 2004).
Pursuant to Rule 12(f) of the Rules of Civil Procedure, the Court may strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored because such motions often only delay the proceedings. See Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). However, if a motion to strike removes unnecessary clutter from the case, then the motion serves to expedite, not delay, the proceedings. Id.
Generally, a court will strike an affirmative defense only if the defense is insufficient on its face. Heller, 883 F.2d at 1294 (also providing that a court will ordinarily not strike an affirmative defense if it is sufficient as a matter of law or presents questions of law or fact). Because affirmative defenses are pleadings, they are subject to the pleading requirements of the Federal Rules of Civil Procedure and must set forth a "short and plain statement" of that defense. Id., citing Fed.R.Civ.P. 8(a).
Although the Seventh Circuit has not addressed whether the heightened pleading standard set forth in Bell Atl. Corp. v. Twombly, 530 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies to affirmative defenses, several courts in this Circuit have found that the heightened pleading standard does apply to affirmative defenses. See Sarkis' Cafe, Inc. v. Sarks in the Park, LLC, ___ F.Supp.2d ___, No. 12 C 9686, 2014 WL 3018002, at *4 (N.D. Ill. July 3, 2014) (citing cases). These courts examine whether the defendant states an "affirmative defense to relief that is plausible on its face." SEC v. Sachdeva, No. 10-C-747, 2011 WL 933967 at *1 (E.D. Wisc. Mar. 16, 2011). However, whether the heightened pleading standard applies likely makes little difference. Factual allegations that were sufficient before Twombly and Iqbal will likely still be sufficient, and "bare bones" affirmative defenses have always been insufficient. See Shield Techs. Corp. v. Paradigm Positioning, LLC, No. 11 C 6183, 2012 WL 4120440 at *8 (N.D. Ill. Sept. 19, 2012). In any event, if an affirmative defense is defective, leave to amend should be freely granted as justice requires under Federal Rule of Civil Procedure 15(a). See Heller, 883 F.2d at 1294.
Petitioner moves to strike Affirmative Defenses No. 1, 2, 4, 5, and 7 through 14. Respondent asserts that the defenses are properly pleaded or were pleaded in an abundance of caution. Respondent requests leave to amend any defenses the Court strikes.
A. The Court Strikes Affirmative Defense No. 1 as Insufficiently Pleaded
Respondent's Affirmative Defense No. 1 alleges that:
Plaintiff's Complaint fails to state a claim upon which relief can be granted.
Petitioner moves to strike this affirmative defense on the grounds that it fails the federal pleading standard and does not give Petitioner fair notice of the grounds upon which the defense rests.
Respondent recognizes that courts have not always agreed whether "failure to state a claim upon which relief can be granted" is a proper affirmative defense. Resp. p. 5 (d/e 11) (citing cases). Respondent asserts that it included the defense in an abundance of caution and because Respondent believes discovery will reveal that Petitioner failed to state a claim upon which relief can be granted. Respondent asks that if the Court determines that failure to state a claim is not a proper defense, that Respondent be granted leave to amend the defense in accordance with the Court's directive.
As Respondent notes, courts are divided on whether a party may properly plead a failure to state a claim as an affirmative defense. See Jackson v. Methodist Med. Ctr. of Ill., No. 06-1235, 2007 WL 128001, at *2 (C.D. Ill. Jan. 11, 2007) (collecting cases). However, even those courts that allow the defense to be raised require more than a "bare recitation of the legal standard." Id.
In this case, Respondent has done no more than recite the legal standard, which is insufficient. Therefore, the Court strikes Affirmative Defense No. 1.
B. The Court Strikes Affirmative Defenses No. 2 and No. 4 Because the Defenses are Not Affirmative Defenses
Petitioner moves to strike Affirmative Defense No. 2 and No. 4 which allege:
The City of Chicago is not a relevant geographic market
Davis Vision members are not a relevant market. Petitioner essentially argues that Respondent does not give Petitioner fair notice of the grounds upon which the defense rests.
In response, Respondent argues that Affirmative Defenses No. 2 and No. 4 assert matters that, if proved, ...