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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

WASHINGTON MUTUAL BANK, 

 Plaintiff, 

v. 

FIRST AMERICAN TITLE INSURANCE 

COMPANY,

 Defendant. 

 / 

Case No. 14-cv-13624 

 Honorable Gershwin A. Drain 

ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE

CERTAIN AFFIRMATIVE DEFENSES [#11] 

I. INTRODUCTION

On September 18, 2014, Plaintiff, Federal Deposit Insurance Corporation as Receiver for 

Washington Mutual Bank (“FDIC-R”), filed a Complaint against Defendant, First American 

Title Insurance Company (“First American”). See Dkt. No. 1. In the Complaint, FDIC-R brings 

a single count of breach of contract against First American. Id. FDIC-R alleges that First 

American refused to honor its obligations under a Closing Protection Letter (the “CPL”) issued 

in connection with a residential real estate transaction financed by Washington Mutual Bank 

(“WaMu”). Id. FDIC-R seeks damages from First American due to losses suffered as a result of 

purported fraud, dishonesty, and misconduct of First American’s authorized issuing agent. Id. 

FDIC-R contends that First American agreed to indemnify FDIC-R for the actions of the 

authorized issuing agent under the CPL. Id.

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In response to FDIC-R’s Complaint, First American has asserted several affirmative 

defenses. See Dkt. No. 4. Presently before the Court is FDIC-R’s Motion to Strike Certain 

Affirmative Defenses. See Dkt. No. 11. Specifically, FDIC-R seeks dismissal of First 

American’s Third, Fourth, Seventh, Ninth, and Tenth affirmative defenses. This matter is fully 

briefed and a hearing was held on January 26, 2015. For the reasons discussed herein, the Court 

GRANTS FDIC-R’s Motion to Strike Certain Affirmative Defenses. 

II. LAW & ANALYSIS

A. Legal Standard 

Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, “[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). The Court may strike improper material from pleadings either sua

sponte or following a motion of a party. See Fed. R. Civ. P. 12(f)(1), (2). “Although the action 

of striking a pleading should be used sparingly by the courts, motions to strike are generally 

granted where the allegations are clearly immaterial to the controversy or would prejudice the 

movant.” Spizizen v. Nat'l City Corp., No. 09–11713, 2010 WL 419993, at *2 (E.D. Mich. Feb.1, 

2010) (Rosen, J.) (citing Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 

822 (6th Cir. 1953)). “Ultimately, the decision to strike a pleading is firmly within the discretion 

of the court.” Id. (citation omitted); see also Sheets v. U.S. Bank, Nat. Ass'n, No. 14—10837, 

2014 WL 5499382, at *2 (E.D. Mich. Oct. 30, 2014) (Steeh, J.). 

B. Legal Analysis

Plaintiff asserts that the Court should strike Defendant’s Third, Fourth, Seventh, Ninth, 

and Tenth affirmative defenses because Plaintiff contends that the affirmative defenses are 

improper and/or legally insufficient. With respect to Defendant’s Third and Fourth affirmative 

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defenses, Plaintiff cites the Sixth Circuit and other courts throughout the country to argue these 

defenses should be stricken because FDIC-R does, in fact, have standing to enforce claims under 

the CPL issued to WaMu. 

For Defendant’s Seventh, Ninth and Tenth affirmative defenses, Plaintiff contends that 

contributory negligence is not a valid defense in a breach of contract case. Lastly, Plaintiff 

contends it will be greatly prejudiced if it is forced to engage in discovery relating to all of the 

aforementioned affirmative defenses because it will be compelled to expend unnecessary time 

and expenses associated with discovery. The Court will address these arguments, as well as 

Defendant’s responses, in turn. 

1. The Court will strike Defendant’s affirmative defenses regarding standing given 

precedent from the Sixth Circuit. 

On April 24, 2014, the United States Court of Appeals for the Sixth Circuit upheld a 

district court decision from the United States District Court for the Eastern District of Michigan 

and found that the “FDIC [] had all the same rights as WaMu in the CPL, and it may bring a 

breach of contract claim based on that document.” JPMorgan Chase Bank, N.A. v. First Am. 

Title Ins. Co., 750 F.3d 573, 580 (6th Cir. 2014), as amended (July 2, 2014).

Here, Defendant requests that the Court abstain from ruling on Plaintiff’s Motion to 

Strike with respect to the standing defenses because “First American is in the process of filing a 

petition for a writ of certiorari to the United States Supreme Court from the Sixth Circuit 

Decision.” Dkt. No. 12 at 9. The Court will not abstain from ruling on Plaintiff’s Motion. 

“[T]he power to stay proceedings is incidental to the power inherent in every court to 

control the disposition of the causes in its docket with economy of time and effort for itself, for 

counsel and for litigants.” Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 

F.2d 393, 396 (6th Cir. 1977) (quoting Landis v. North American Company, 299 U.S. 248, 254, 

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57 S.Ct. 163, 166, 81 L. Ed. 153 (1936)). “How this can best be done calls for the exercise of 

judgment, which must weigh competing interests and maintain an even balance.” Landis, 299 

U.S. at 254-55, 57 S. Ct. at 166. 

The Sixth Circuit Court of Appeals has warned “that a court must tread carefully in 

granting a stay of proceedings, since a party has a right to a determination of its rights and 

liabilities without undue delay.” Ohio Envtl. Council, 565 F.2d at 396. The party seeking the 

stay has the burden of “mak[ing] out a clear case of hardship or inequity in being required to go 

forward.” Landis, 299 U.S. at 255, 57 S.Ct. at 166. The moving party must also show “that there 

is pressing need for delay, and that neither the other party nor the public will suffer harm from 

entry of the [stay].” Ohio Envtl. Council, 565 F.2d at 396. 

“The Supreme Court has articulated specific criteria to examine if considering a stay is 

appropriate. ‘[J]udges of the lower courts [ ] apply the same criteria’ as the Supreme Court.” 

United States v. Mandycz, 321 F. Supp. 2d 862, 864 (E.D. Mich. 2004) (quoting United States v. 

Holland, 1 F.3d 454, 456 (7th Cir. 1993) (brackets in original). Thus, to obtain a stay, “[a]n 

applicant must demonstrate: (1) a reasonable probability that four Justices would vote to grant 

certiorari; (2) a significant possibility that the [Supreme] Court would reverse the judgment 

below; and (3) a likelihood of irreparable harm, assuming the correctness of the applicant's 

position, if the judgment is not stayed.” Packwood v. Senate Select Comm. on Ethics, 510 U.S. 

1319, 114 S.Ct. 1036, 1037, 127 L.Ed.2d 530 (1994) (Rhenquist, J., in chambers) (citing Barnes

v. E–Systems, Inc. Group Hosp. M1ed. & Surgical Ins. Plan, 501 U.S. 1301, 1302, 112 S.Ct. 1, 

115 L.Ed.2d 1087 (1991) (Scalia, J., in chambers)). 

In reviewing these factors, the Court believes that dismissing the affirmative defenses 

regarding standing and permitting the case to proceed is more efficient than abstaining from 

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ruling on the matter. For the first factor, the Court finds there is not a reasonable probability that 

four Justices would vote to grant certiorari. 

To determine whether four Justices would vote to hear such an issue, the Court looks to 

Rule 10 of the Supreme Court Rules, which state: 

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A 

petition for a writ of certiorari will be granted only for compelling reasons. The 

following, although neither controlling nor fully measuring the Court's discretion, 

indicate the character of the reasons the Court considers: 

(a) a United States court of appeals has entered a decision in conflict with the 

decision of another United States court of appeals on the same important 

matter; has decided an important federal question in a way that conflicts with 

a decision by a state court of last resort; or has so far departed from the 

accepted and usual course of judicial proceedings, or sanctioned such a 

departure by a lower court, as to call for an exercise of this Court's 

supervisory power; 

(b) a state court of last resort has decided an important federal question in a way 

that conflicts with the decision of another state court of last resort or of a 

United States court of appeals; 

(c) a state court or a United States court of appeals has decided an important 

question of federal law that has not been, but should be, settled by this Court, 

or has decided an important federal question in a way that conflicts with 

relevant decisions of this Court. 

U.S. Sup. Ct. R. 10. Provision (b) of Rule 10 of the Supreme Court Rules is inapplicable, as this 

case does not involve a decision by a state court of last resort. Likewise, provision (a) of Rule 10 

appears to be inapplicable because there does not appear to be any conflict between the Sixth 

Circuit's decision and decisions of other circuits.1

 

1

 To the contrary, in reaching its decision, the Sixth Circuit cited its “sister circuits[, which] uniformly have held that 

parties attempting to rely on the P & A Agreement to invoke a court's jurisdiction lack prudential standing to do so 

because they are neither parties to nor third-party beneficiaries of the agreement.” JPMorgan Chase Bank, N.A., 750 

F.3d at 581 (citing Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, Nat'l Ass'n, No. 12–3302–CV, 747 F.3d 

44, 48–51, 2014 WL 401303, at *3–5 (2d Cir. Feb. 4, 2014); Excel Willowbrook, LLC v. JP Morgan Chase Bank, 

Nat'l Ass'n, 740 F.3d 972, 979 (5th Cir. 2014); Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., 704 F.3d 

927, 933 (11th Cir. 2013); Deutsche Bank National Trust Co. v. FDIC, 717 F.3d 189 (D.C. Cir. 2013); GECCMC

2005–C1 Plummer St. Office Ltd. P'ship v. JPMorgan Chase Bank, Nat'l Ass'n, 671 F.3d 1027, 1036 (9th Cir. 

2012)). 

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Defendant argues that the Court “should stay its ruling because the viability of First 

American’s standing defenses will be directly impacted by First American’s appeal to the United 

States Supreme Court.” Dkt. No. 12 at 10. Be that as it may, this case does not appear to present 

an opportunity to address an important and unsettled aspect of federal law which would warrant 

Supreme Court Review, as outlined by provision (c) of the Supreme Court Rules. 

Thus, Defendant does not satisfy the first of the three factors for obtaining a stay. This is 

fatal to Defendant’s request for a stay because Defendant “must demonstrate” each of the three 

factors to obtain a stay. Mandycz, 321 F. Supp. 2d at 866 (quoting Packwood, 114 S.Ct. at 1037). 

Defendant does not demonstrate “a reasonable probability that four Justices would vote to grant 

certiorari.” Packwood, 114 S.Ct. at 1037.

Even if Defendant disagrees with this Court’s analysis of the likelihood of Defendant’s 

petition being granted, it cannot be disputed that a petition being granted by the Supreme Court 

is a rare occurrence.2

 Federal courts are vested with a “virtually unflagging obligation . . . to 

exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 817, 96 S. Ct. 1236, 1246, 47 L. Ed. 2d 483 (1976) (citations omitted). Given this 

obligation, the Court declines Defendant’s request to abstain from ruling on this issue, and 

strikes Defendant’s Third and Fourth affirmative defenses regarding standing in light of the clear 

precedent in the Sixth Circuit on this issue. 

 

2 See Kedar S. Bhatia, Likelihood of a Petition Being Granted, DAILY WRIT (Jan. 10, 2013), 

http://dailywrit.com/2013/01/likelihood-of-a-petition-being-granted/ (analyzing both paid and IFP petitions between 

2002 and 2012 to conclude that petitions have a 1.03% overall chance of being granted—with paid petitions 

standing a 4.29% chance and IFP petitions standing a .172% chance); see also Joan Biskupic et al., The Echo 

Chamber, REUTERS (Dec. 8 2014, 10:30 AM), http://www.reuters.com/investigates/special-report/scotus/ 

(“Persuading the U.S. Supreme Court to hear an appeal is no easy task. Private lawyers asked the justices to consider 

10,300 petitions from the 2004 through 2012 court terms, according to a Reuters analysis of Westlaw data. The 

justices agreed to hear just 5 percent – or 528 – of those appeals.”) 

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2. The Court will also strike the affirmative defenses regarding “Negligence / 

Contributory Negligence.” 

In its Answer, First American states that its Ninth affirmative defense is for 

“Negligence/Contributory Negligence.” Dkt. No. 4 at 10. The Parties do not dispute that CPLs 

are indemnity contracts. See Dkt. No. 12 at 10 (citing Dkt. No. 11 at 9-10); see also JPMorgan 

Chase Bank, N.A., 750 F.3d at 579 (“the parties agree that a CPL is an indemnity agreement and 

not an insurance policy.”). Indemnity contracts are construed like any other contract. See Holmes 

v. St. Clair Cnty., Mich., No. 04-73830, 2005 WL 1684136, at *3 (E.D. Mich. July 18, 2005) 

In no uncertain terms, Judge Battani of this District rejected First American’s arguments 

for contributory negligence, and correctly noted that “contributory negligence is not a valid 

defense in a breach of contract case.” JP Morgan Chase Bank, N.A. v. First Am. Title Ins. Co.,

795 F. Supp. 2d 624, 633 (E.D. Mich. 2011) aff'd sub nom.as amended (July 2, 2014) JPMorgan 

Chase Bank, N.A., 750 F.3d 573.

This being the case, Plaintiff asserts that all of Defendant’s affirmative defenses based on 

the theory of contributory negligence fail as a matter of law. See Dkt. No. 11 at 17. In response, 

Defendant maintains that Plaintiff misconstrues its negligence defenses, and asserts that it “is not 

asserting contributory negligence or comparative negligence as a defense to a breach of contract 

claim.” See Dkt. No. 12 at 7. Instead, Defendant argues it is “asserting the legal principle that the 

negligence of an indemnitee will bar the indemnitee from recovery under an indemnity contract 

when the parties to the contract did not intend for the indemnitee to be indemnified for its own 

negligence.” Id. at 12.

In its Reply, the Plaintiff aptly notes that “by acknowledging that it is not pursuing 

defenses of comparative or contributory negligence, First American effectively concedes that 

these defenses are inapplicable and, accordingly, should be stricken.” Dkt. No. 13 at 4. The 

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Court agrees and emphasizes that there will be no affirmative defenses for comparative or 

contributory negligence in this case. See JP Morgan Chase Bank, N.A., 795 F. Supp. 2d at 633.

However, Defendant attempts to distinguish the district court’s opinion in JP Morgan 

Chase from the facts at issue here by arguing that in JP Morgan, the district court cited 

Michigan law for the proposition that “one accused of fraud may not raise as a defense the 

carelessness of the party defrauded.” 795 F. Supp. 2d at 632-33 (quoting Foodland Distributors 

v. Al-Naimi, 220 Mich. App. 453, 460, 559 N.W.2d 379, 382 (1996)). 

Here, Defendant contends it is making the distinct legal argument that “where the parties 

do not intend for the indemnitee to be indemnified for its own negligence, the indemnitee’s 

negligence will bar its recovery.” Dkt. No. 12 at 10-11 (citing Badiee v. Brighton Area Sch., 265 

Mich. App. 343, 354, 695 N.W.2d 521, 532-33 (2005)). Defendant emphasizes that “[t]his is a 

valid legal defense to a claim for contractual indemnification under Michigan law.” Id. at 11 

(citing Badiee, 265 Mich. App at 354, 694 N.W.2d at 532-33). 

The Court does not dispute Defendant’s assertion, but does note that, in Michigan, courts 

hold that “indemnity clauses need not expressly mention the indemnitee's own acts to provide 

coverage for them.” Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767, 773 (E.D. Mich. 2013) 

(citing Badiee, 265 Mich. App. at 353, 695 N.W.2d 521). While Defendant contends that the 

language in the CPL at issue “is not broad enough to encompass an agreement to indemnify 

WaMu for its own negligence,” the Court does not reach that conclusion. 

The Court emphasizes that “‘although an indemnity provision does not expressly state 

that the indemnitee will be shielded from its own negligence, such language is not mandatory to 

provide such indemnification.’” Red Frog Events, LLC, 979 F. Supp. 2d at 773 (citing 

Fischbach–Natkin Co. v. Power Process Piping, Inc., 157 Mich. App. 448, 452–53, 403 N.W.2d 

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569 (1987)); see also Harbenski v. Upper Peninsula Power Co., 118 Mich. App. 440, 454, 325 

N.W.2d 785, 791 (1982) (“The contention that the intent to indemnify an indemnitee against his 

own negligence must be expressly stated has been rejected.”) 

Looking to the plain language of the CPL at issue, the Court agrees with Judge Battani 

that First American cannot avoid its indemnification obligations by arguing that WaMu was 

negligent. Per the plain language of the CPL, the only relevant inquiry in this case is whether 

First American’s issuing agent failed to comply with WaMu’s relevant written closing 

instructions, and whether or not the issuing agent was fraudulent or dishonest in handling 

WaMu’s funds or documents in connection with the closings. See Dkt. No. 1-1 at 2.

As Plaintiff points out, adding an additional interpretation that Defendant did not intend 

to indemnify WaMu for its own negligence would require the Court to “improperly insert[] terms 

in the CPL where none exist.” Dkt. No. 13 at 5 n.5. The Court will not insert additional terms. 

Instead, the Court will look at the plain language of the contract and conclude that comparative 

negligence is not a defense to Plaintiff’s CPL claim.

III. CONCLUSION

For the reasons discussed, the Court GRANTS FDIC-R’s Motion to Strike Third, Fourth, 

Seventh, Ninth, and Tenth Affirmative Defenses. 

SO ORDERED. 

Dated: January 30, 2015 

 /s/Gershwin A Drain 

 Hon. Gershwin A. Drain 

 United States District Court Judge

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