United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. ASPEN, District Judge:
before us is Plaintiff Brenda Brown's motion to strike
Defendant Kelly Services, Inc.'s (“Kelly”)
affirmative defenses. (Mot. (Dkt. No. 14).) For the reasons
stated below, we grant in part and deny in part
worked as a recruiter for Kelly in its Romeoville, Illinois
office. (Compl. ¶¶ 1, 6.) Plaintiff alleges that
during her time at Kelly she observed discrimination against
African-American job applications. (Id. ¶ 9.)
Specifically, Plaintiff alleges that another employee gave
preference to non-African American applicants, provided
pretextual reasons for denying African-American applicants
particular job assignments, and did not offer
African-American applicants the same assistance as other
applicants during the application process. (Id.
¶¶ 10-13.) Plaintiff claims that on June 20, 2016
she began to complain to Kelly about the discrimination she
witnessed, after which her co-worker “began to treat
[her] in a disrespectful and hostile manner.”
(Id. ¶¶ 15-16.) Plaintiff further claims
she reported her coworker's behavior to her branch
manager, who then asked if she wanted to resign.
(Id. ¶ 17.) Plaintiff declined and was
terminated on June 28, 2016. (Id. ¶ 18.)
Plaintiff filed her complaint alleging retaliation in
violation of 42 U.S.C. § 1981 on December 7, 2016. On
February 1, 2017, Kelly responded by filing its answer and
affirmative defenses. (Dkt. No. 8.) Plaintiff moved to strike
those affirmative defenses on February 15, 2017.
motion to strike Kelly's affirmative defenses is governed
by Rule 12(f), which states that “[t]he 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 they “potentially serve
only to delay, ” and so affirmative defenses
“will be stricken only when they are insufficient on
the face of the pleadings.” Heller Fin., Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir.
1989). To survive a motion to strike, an affirmative defense
must satisfy a three-part test: “(1) the matter must be
properly pleaded as an affirmative defense; (2) the matter
must be adequately pleaded under the requirements of Federal
Rules of Civil Procedure 8 and 9, and (3) the matter must
withstand a Rule 12(b)(6) challenge.” Sarkis'
Cafe, Inc. v. Sarks in the Park, LLC, 55 F.Supp.3d 1034,
1039 (N.D. Ill. 2014) (citation omitted).
initial matter, the parties dispute whether the pleading
standard set forth in Bell Atlantic v. Twombly, 550
U.S. 544, 127 S.Ct. 1955 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) applies to
affirmative defenses. (Def.'s Resp. (Dkt. No. 27) at
2-4); Pl.'s Reply (Dkt. No. 29) at 1-3.) The Seventh
Circuit has not yet decided whether that the
Twombly-Iqbal standard applies to
affirmative defenses. However, the majority view of District
Court decisions in this circuit is that the pleading standard
set forth in Twombly and Iqbal applies to
affirmative defenses. See Sarkis Cafe, 55 F.Supp.2d
at 1040; Shield Tech. Corp. v. Paradigm Postitioning,
LLC, No. 11 C 6183, 2012 WL 4120440, at *8 (N.D. Ill.
Sept. 19, 2012) (“[W]e believe that the test applicable
to affirmative defenses should reflect current pleading
standards, and therefore adopt the majority view that
Twombly and Iqbal apply to affirmative
defenses.”); Champion Steel Corp. v. Midwest
Strapping Prods., Inc., No. 10 C 50303, 2011 WL 5983297,
at *2 n.2 (N.D. Ill. Nov. 28, 2011) (“The majority of
courts in this circuit who have addressed the issue have
concluded that the pleading standards of
Twombly/Iqbal apply to affirmative
defenses.”); Riemer v. Chase Bank USA, N.A.,
274 F.R.D 637, 639-40 (N.D. Ill. 2011) (collecting cases).
Because “[a]ffirmative defenses are pleadings and,
therefore, subject to all pleading requirements of the
Federal Rules of Civil Procedure, ” we agree with the
majority view and shall apply the Twombly and
Iqbal pleading standard to affirmative defenses.
Heller, 883 F.2d at 1294. Accordingly, Kelly's
affirmative defenses must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Iqbal,
556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly,
550 U.S. at 570, 127 S.Ct. at 1974).
asserts 22 affirmative defenses in its answer. (Dkt. No. 8 at
5-7 (numbered 24-46).) Plaintiff moves to strike all of
Kelly's affirmative defenses, except for defenses 34 and
(Mot. at 1.) Plaintiff argues that Kelly's Affirmative
Defenses Nos. 25-28, 35, and 38 must be stricken because they
are mere legal conclusions. (Pl.'s Mem. ISO Mot. (Dkt.
No. 15) at 3-4, 6-7.) With the exception of Affirmative
Defense No. 27, we agree. For example, Kelly's
Affirmative Defense No. 25 states that “Plaintiff's
Complaint is barred because of release, prior judgment,
statute of limitations, and/or assignment or other
disposition of the claim before the commencement of the
action.” (Dkt. No. 8 at 5.) These “[t]hreadbare
recitals of the elements” would not withstand a Rule
12(b)(6) challenge. Iqbal, 56 U.S. at 678, 129 S.Ct.
at 1949; see Heller, 883 F.2d at 1294 (“The
remaining defenses are equally meritless. They are nothing
but bare bones conclusory allegations.”). Accordingly,
we grant Plaintiff's motion to strike Kelly's
Affirmative Defense Nos. 25, 26, 28, 35, and 38.
Affirmative Defense No. 27 states in conclusory fashion that,
“[w]ithout admitting Plaintiff suffered any damages,
Plaintiff has failed to mitigate her damages.” (Dkt.
No. 8 at 5.) However, “where discovery has barely
begun, the failure to mitigate defense is sufficiently pled
without additional facts.” Thomas v. Exxon Mobil
Corp., No. 7 C 7131, 2009 WL 377334, at *4 (N.D. Ill.
Feb. 11, 2009) (internal quotation marks omitted) (quoting
AAR Int'l, Inc. v. Vacances Heliades S.A., 202
F.Supp.2d 788, 800 (N.D. Ill. 2002)). We therefore deny
Plaintiff's motion to strike Kelly's Affirmative
Defense No. 27.
Affirmative Defense No. 40, Kelly states its “actions
and communications were made in good faith and without malice
or reckless indifference or a desire to harm
Plaintiff.” (Dkt. No. 8 at 6.) That defense is
“nothing more than a mere denial of the allegations in
the complaint, ” and is “inappropriately
pleaded” as an affirmative defense. Thomas,
2009 WL 377334, at *2 (finding defendant's defense that
its “conduct was not willful” was inappropriately
pleaded as an affirmative defense); see also Weisman v.
First Data Merchant Servs. Corp, No. 6 C 3024, 2006 WL
3694853, at *2 (N.D. Ill.Dec. 11, 2006) (finding
defendant's defense that it “did not act in willful
disregard of the requirements of any law” was a
“redundant denial of plaintiff's
allegations” and not properly pleaded as an affirmative
defense). We therefore grant Plaintiff's motion to strike
Kelly's Affirmative Defense No. 40. Holzer v.
Prudential Equity Group LLC, 520 F.Supp.2d 922, 929
(N.D. Ill. 2007) (“It is improper to assert something
as an affirmative defense that is nothing more than a denial
of an allegation contained in the complaint.” (citation
Affirmative Defense No. 44 states that, “[if] Plaintiff
suffered any damages, which Kelly Services, Inc. disputes,
such damages were proximately and legally caused by the
misconduct and fault of Plaintiff or parties other than Kelly
Services, Inc.” (Dkt. No. 8 at 7.) In addition to being
a bare-bones legal conclusion, this affirmative defense
concerns “apportionment of liability and the liability
of others, [which] are denials.” Hughes v.
Napleton's Holdings, LLC, No. 15 C 50137, 2016 U.S.
Dist. LEXIS 155202, at *17 (N.D. Ill. Nov. 6, 2016); see
also Yash Raj Films (USA) Inc. v. Atlantic Video, No. 3
C 7069, 2004 WL 1200184, at *3 (N.D. Ill. May 28, 2004)
(striking an affirmative defense that “operates to
reduce liability on a comparative fault basis or operates as
a denial of liability altogether, and as such, does not
qualify as an affirmative defense”). Accordingly, we
grant Plaintiff's motion to strike Kelly's
Affirmative Defense No. 44.
Plaintiff argues we must strike Kelly's Affirmative
Defense No. 45, which states that “Plaintiff has
executed an arbitration agreement waiving the jurisdiction of
this court, ” (Dkt. No. 8 at 7), because Kelly
“fail[ed] to attached the alleged arbitration agreement
or recite any of its alleged terms” such that its
defense “is simply a legal conclusion without any
supporting facts.” (Pl.'s Mem. at 9.) At the
pleading stage, Kelly is not required to provide proof of the
arbitration agreement, or detail the terms of the agreement.
Accepting as true Kelly's assertion that Plaintiff
executed an arbitration that waives the jurisdiction of this
court, which we are required to do at this stage of the