United States District Court, S.D. Illinois
WILLIAM A. WHITE, Plaintiff,
DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES MARSHALS SERVICE, FEDERAL BUREAU OF PRISONS and BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE.
matter comes before the Court on plaintiff William A.
White's motion under Federal Rule of Civil Procedure
12(f)(2) to strike the second and third affirmative defenses
asserted by the defendant Department of Justice
(“DOJ”) on behalf of its agencies named in this
case (Doc. 41). The DOJ has responded to the motion (Doc.
44), and White has replied to that response (Doc. 45).
brings this lawsuit under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, asserting that
Federal Bureau of Investigation, the United States Marshals
Service, the Federal Bureau of Prisons, and the Bureau of
Alcohol, Tobacco, Firearms and Explosives have failed to
comply with the act in a various ways. In its answer, the DOJ
asserts as its second affirmative defense that White has
failed to state a claim and as its third affirmative defense
that the Court lacks subject matter jurisdiction because the
DOJ's agencies have not withheld information under FOIA.
asks the Court to strike the DOJ's second and third
affirmative defenses under Rule 12(f)(2) because they are
insufficient. Specifically, he argues that the second
affirmative defense is underdeveloped and the third
affirmative defense states a defense on the merits rather
than a jurisdictional defense. He also complains that the DOJ
asserted these defenses in its answer without first filing a
motion asserting the defenses.
response, the DOJ argues that whether a motion to dismiss
under Rule 12(b)(6) precedes or follows an answer is
irrelevant because a Rule 12(b)(6) motion filed after an
answer is simply treated as a motion for judgment on the
pleadings under Rule 12(c). It further explains how
compliance with FOIA presents a legitimate jurisdictional
defense that need not be raised in a motion.
Rule 12(f), upon a motion or upon its own initiative,
“[t]he court may strike from a pleading an insufficient
defense. . . .” The purpose of the rule is to prevent
unnecessary expenditures of time and money litigating
spurious issues. Whittlestone, Inc. v. Handi-Craft
Co., 618 F.3d 970, 973 (9th Cir. 2010). Motions to
strike are generally disfavored because they are often
employed for the sole purpose of causing delay. See
Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286,
1294 (7th Cir. 1989). For this reason, this Court and others
have held that a party must show prejudice to succeed on a
motion to strike. See, e.g., Anderson v. Board of Educ.
of Chi., 169 F.Supp.2d 864, 867 (N.D. Ill. 2001);
see also Talbot v. Robert Matthews Distrib. Co., 961
F.2d 654, 664 (7th Cir. 1992). The Court should not strike
matter from a pleading pursuant to Rule 12(f) “unless
the challenged allegations have no possible relation or
logical connection to the subject matter of the controversy
and may cause some form of significant prejudice to one or
more of the parties to the action.” 5C Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1382 (3d ed.); accord
Anderson, 169 F.Supp.2d at 867-68. The burden on a
motion to strike is upon the moving party. See Vakharia
v. Little Co. of Mary Hosp. & Health Care Ctrs., 2
F.Supp.2d 1028 (N.D. Ill. 1998).
has not shown that the affirmative defenses he seeks to
strike are completely irrelevant to this case or have caused
or will cause him to suffer any prejudice. To the extent he
claims prejudice because he cannot respond to a vague
affirmative defense, no pleading response is required.
See Williams v. Jader Fuel Co., 944 F.2d
1388, 1399 (7th Cir. 1991) (“The Federal Rules do not
permit a response to an answer that does not contain a
counterclaim.”). White may flesh out further details
about the DOJ's defenses during discovery, and the Court
will address their merits if they are raised by motion or at
he shown that the DOJ's affirmative defenses are
procedurally improper because the DOJ asserted them in its
answer without first filing a motion to dismiss based on
those defenses. Rule 12(b) provides that every defense
“must be asserted in the responsive pleading if one is
required.” Certain defenses may be asserted by
a motion to dismiss, and any such motion must be made before
a responsive pleading. Fed.R.Civ.P. 12(b). However, even if a
Rule 12(b)(6) motion is not filed until after a responsive
pleading, it will be entertained, albeit as a motion for
judgment on the pleadings under Rule 12(c) rather than as a
motion to dismiss under Rule 12(b)(6). McMillan v.
Collection Professionals, Inc., 455 F.3d 754, 757 (7th
Cir. 2006). In other words, a defendant does not need to file
a motion based on an affirmative defense in order to assert
it properly in its pleading. In fact, Rule 12 states that
failure to state a claim can be raised in a
pleading, a motion to dismiss or at trial, Fed.R.Civ.P.
12(h)(2), and subject matter jurisdiction can be raised
at any time, Fed.R.Civ.P. 12(h)(3). The DOJ's
assertion of its affirmative defenses two and three were not
foregoing reasons, the Court finds White has not carried his
burden of demonstrating why the Court should strike the
DOJ's second and third affirmative defenses. Accordingly,
the Court DENIES his motion (Doc. 41).