IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JULIO VILLARS ) 

 ) 

 Plaintiff, ) 

 ) Case No. 12 CV 4586

 v. ) 

 ) Judge Robert M. Dow, Jr. 

STEPHEN KUBIATOWSKI as Assistant 

United States Attorney for the Northern 

District of Illinois; MAURY STRAUB as 

Ozaukee County Sheriff; JEFFREY SAUDER 

as Ozaukee County Jail Administrator; DOES 

OZAUKEE COUNTY JAIL DEPUTIES 1-8; 

COUNTY OF OZAUKEE; KENNETH 

COPPES, PATRICK MURRAY, and 

MICHAEL BARR as Village of Round Lake 

Beach Police Officer; the VILLAGE OF 

ROUND LAKE BEACH; GARY BITLER as 

Round Lake Beach Police Chief; LAKE 

COUNTY; MARK CURRAN as Sheriff of 

Lake County; DOES LAKE COUNTY JAIL 

DEPUTIES SHERIFF 9-13, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

 ) 

 Defendants. ) 

 

 

MEMORANDUM OPINION AND ORDER 

 Before the Court is Plaintiff’s motion to strike Defendant Ozaukee County’s affirmative 

defenses [68]. For the reasons set forth below, the Court grants Plaintiff’s motion as to 

affirmative defenses (2) and (6), but denies the motion as to affirmative defenses (1), (3), (4), and 

(5). 

I. Background

 Plaintiff Julio Villars commenced this suit on June 13, 2012 and filed a twenty-one count 

second amended complaint on August 1, 2013. On August 30, 2013, Defendant Ozaukee County 

filed its answer and pled the following six affirmative defenses: 
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1. Plaintiff’s claims against the fictitious defendants in their individual capacities 

are barred by applicable statutes of limitations because plaintiff was released on 

February 1, 2011 and has failed to identify the fictitious defendants within the two 

year statute of limitations applicable to this matter; 

2. Plaintiff’s complaint contains claims which fail to state a claim upon which 

relief may be granted because he has failed to identify unconstitutional conditions 

of confinement, illegal imprisonment, illegal strip searches, failure to prosecute 

actions subject to his alleged failure to access law library materials, and because 

he was represented by counsel; 

3. These answering defendants are protected from suit by immunities including 

qualified immunity because any individual capacity claims are barred by the fact 

that their actions were constitutional and existing law does not deem their actions 

unconstitutional; 

4. No joint and several liability exists for the claims raised by the plaintiff against 

defendants because 42 U.S.C. does not allow for joint and several liability; 

5. Plaintiff’s injuries or damages, if any, were not caused by a governmental 

policy or practice of these answering defendants, barring his official capacity 

claims against the named individual defendants and municipal claims against 

Ozaukee County; 

6. Plaintiff’s claims against these answering defendants insurer are subject to the 

definitions, exclusions, and limitations within the policy; the defendant insurer 

shall, in no way, be liable for amounts alleged or awarded above its policy limits. 

 Plaintiff now moves to strike these defenses, arguing that they are “conclusory . . . 

without pleading any facts that form the basis for these defenses” in violation of Federal Rule of 

Civil Procedure 12(f). 

II. Analysis 

A. Legal Standard 

 Under Federal Rule of Civil Procedure 12(f) “the court may strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions 

to strike affirmative defenses may be used to expedite a case by “remov[ing] unnecessary clutter 

from the case.” Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 
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1989); Man Roland, Inc. v. Quantum Color Corp., 57 F. Supp. 2d 576, 578 (N.D. Ill 1999);

Codest Eng’g v. Hyatt Int’l Corp., 954 F. Supp 1224, 1228 (N.D. Ill 1996). Affirmative defenses 

will be stricken only when they are facially insufficient; therefore it would be inappropriate to 

strike an affirmative defense where the issues are complex. Heller, 883 F.2d at 1294. 

“Ordinarily, defenses will not be struck if they are sufficient as a matter of law or if they present 

questions of law or fact. Affirmative defenses are pleadings and, therefore, are subject to all 

pleading requirements of the Federal Rules of Civil Procedure.” Id. Thus, defenses must set 

forth a “short and plain statement,” of the defense. Id. (citing Fed. R. Civ. P. 8(a)). That being 

said, a defendant’s pleading will be construed liberally. 

 B. Affirmative Defenses

 Plaintiff argues that all six of Defendant’s affirmative defenses fall short of satisfying 

Rule 8’s “fair notice” pleading requirement because “Defendants’ affirmative defenses provide 

absolutely no indication of what the factual basis of those affirmative defenses might be, and 

therefore, force Plaintiff to guess and wonder.” The Court needs to look no further than 

Defendant’s first affirmative defense to determine the untenability of this generalized and 

conclusory claim. In that defense, Defendant asserts that the statute of limitations bars Plaintiff’s 

suit, since “plaintiff was released on February 1, 2011 and has failed to identify the fictitious 

defendants within the two year statute of limitations applicable to this matter.” In addition to 

Ozaukee County, sheriff Maury Straub, and jail administrator Jeffrey Sauder, Plaintiff has sued 

“Does Ozaukee County Jail Deputies 1-8.” Knowing that, this affirmative defense leaves 

nothing to “guess” or “wonder.” The Court, therefore, will not strike Defendant’s affirmative 

defenses based on Plaintiff’s unsupported, one-line argument that all of the defenses “provide no 

indication” as to their factual bases. 
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 Plaintiff specifically objects to affirmative defenses (2) and (6). He argues that 

Defendant’s second affirmative defense should be stricken because it is a “boilerplate affirmative 

defense of ‘failure to state a claim’ [that] must be stricken because it is not a cognizable 

affirmative defense.” The Court agrees. For one, several of Defendant’s purported reasons for 

raising the defense in the first place have no cognizable relation to the claims in Plaintiff’s 

complaint, suggesting that their language is, in fact, boilerplate. For example, Defendant states 

that Plaintiff’s complaint fails to state a claim “because he has failed to identify unconstitutional 

conditions of confinement” and “failure [sic] to access law library materials, and because he was 

represented by counsel.” Yet Plaintiff’s complaint does not attempt to state claims based on the 

conditions of his confinement or lack of access to law library materials. But even setting aside 

the boilerplate nature of this language, “a true affirmative defense raises matters outside the 

scope of plaintiff’s prima facie case and such matter is not raised by a negative defense.” 

Instituto Nacional De Comercializacion Agricola (Indeca) v. Continental Illinois Nat. Bank and 

Trust Co., 576 F. Supp. 985, 988 (N.D. Ill. 1983) (quoting 2A MOORE’S FEDERAL PRACTICE ¶ 

8.27 [4], at 8-260). Ozaukee County’s defense that Plaintiff has failed to state a claim would 

have been more appropriately asserted in a motion to dismiss pursuant to Rule 12(b)(6), rather 

than as an “affirmative” defense. See Fed. R. Civ. P. 12(b)(6); Sayad v. Dura Pharmaceuticals, 

Inc., 200 F.R.D. 419, 422 (N.D. Ill. 2001) (“The Court agrees with Judge Shadur[‘s decision in 

Instituto Nacional] that an allegation of failure to state a claim is not technically an affirmative 

defense.”); Instituto Nacional, 576 F. Supp. at 991 (“[F]ailure to state a claim upon which relief 

may be granted . . . is not a proper affirmative defense under Rule 8(c)). Ozaukee County did 

not file a 12(b)(6) motion, however, so the Court will not have occasion to consider this defense. 

For that reason, this affirmative defense is clutter and, accordingly, the Court grants Plaintiff’s 
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motion to strike Defendant’s second affirmative defense (even though there really is no practical 

effect or advantage to the Plaintiff in the Court doing so). 

 Plaintiff also objects to Defendant’s sixth affirmative defense because it “fails to set forth 

a short and plain statement of anything that constitutes an avoidance or an Affirmative Defense.” 

The Court agrees. Defendant’s affirmative defense states that “Plaintiff’s claims against these 

answering defendants [sic] insurer are subject to the definitions, exclusions, and limitations 

within the policy; the defendant insurer shall, in no way, be liable for amounts alleged or 

awarded above its policy limits.” An affirmative defense is “an admission of the fact alleged in 

the complaint, coupled with the assertion of some other reason defendant is not liable.” Instituto 

Nacional, 576 F. Supp. at 988 (emphasis added). Like its second affirmative defense, Defendant 

seems to have included this defense without regard to the actual allegations in this case. Plaintiff 

does not make any claims against Ozaukee County’s insurer and, as far as the Court can discern, 

Defendant’s insurer’s policy limit has no bearing on Ozaukee County’s potential liability to 

Plaintiff for their alleged violations of his civil rights. For that reason, this defense is 

inapplicable to this case and is stricken. Sayad, 200 F.R.D. at 422 (striking affirmative defenses 

that are “inapplicable” and “irrelevant” to Plaintiff’s allegations). 

 The Court notes that Defendant’s response to Plaintiff’s motion to strike addresses 

Plaintiff’s generalized claims about Defendant’s defenses, arguing that all six affirmative 

defenses “sufficiently inform[] Villars of the issue raised and each affirmative defense also 

properly constitutes a statement of reasons that confirm that Villars has no right to recovery in 

addition to the denials included in the main body of the answer.” But Defendant fails to address 

Plaintiff’s specific attacks regarding affirmative defenses (2) or (6), bolstering the Court’s 

conclusion that Defendant included these defenses in its responsive pleading as a matter of form, 
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without regard to the specific allegations at issue here, and should therefore be stricken. If 

Defendant (a) believes that the Court has misconstrued an affirmative defense that Defendant has 

tried to assert in its pleading and (b) believes that that affirmative defense is, in fact, a valid one, 

Defendant may seek leave to amend its pleadings pursuant to Rule 15(a) and include an 

appropriate explanation. 

III. Conclusion 

 For the reasons stated above, Plaintiff’s motion to strike Defendant Ozaukee County’s 

affirmative defenses [68] is granted as to affirmative defenses (2) and (6), but denied as to 

affirmative defenses (1), (3), (4), and (5). 

 

Dated: May 14, 2014 __________________________________ 

Robert M. Dow, Jr. 

 United States District Judge