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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

REHAB SOLUTIONS, INC., 

 Plaintiff, 

 Case No. 14-cv-13651 

Honorable Gershwin A. Drain 

v. 

ST. JAMES NURSING & PHYSICAL 

REHABILITATION CENTER, INC.,

 Defendant. 

 / 

ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S 

AFFIRMATIVE DEFENSES [#9] 

I. INTRODUCTION

Plaintiff, Rehab Solutions, Inc. (“Rehab Solutions”), commenced this breach of contract 

action against Defendant, St. James Nursing & Physical Rehabilitation Center, Inc. (“St. 

James”), on September 19, 2014. See Dkt. No. 1. On October 17, 2014, Defendant filed an 

Answer with Affirmative Defenses to Plaintiff’s Complaint. See Dkt. No. 5.

Presently before the Court is Plaintiff’s Motion to Strike Defendant’s Affirmative 

Defenses, which was filed on November 7, 2014. See Dkt. No. 9. This matter is fully briefed and 

the Court concludes that oral argument will not aid in the resolution of this matter. Accordingly, 

the Court will resolve Plaintiff’s Motion on the briefs submitted and cancels the December 3, 

2014 hearing. See E.D. Mich. L.R. 7.1(f)(2). For the reasons discussed herein, the Court will 

GRANT Plaintiff’s Motion. 

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II. LEGAL ANALYSIS

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). “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.).

 This Court finds that the pleading standards put forth in Bell Atlantic Corporation v. 

Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), also apply in the context of a 

defendant asserting an affirmative defense. See Safeco Ins. Co. of Am. v. O'Hara Corp., No. 

08—10545, 2008 WL 2558015, at *1 (E.D. Mich. June 25, 2008) (Cleland, J.) (citing Twombly,

550 U.S. 544 at 553, 127 S. Ct. at 1964); see also Shinew v. Wszola, No. 08—14256, 2009 WL 

1076279, at *4 (E.D. Mich. Apr. 21, 2009) (Scheer, M.J.) (finding that the “pleading offered by 

Defendants in [that] case is the very essence of the boilerplate ‘labels and conclusions’ which the 

court in Twombly found insufficient.”); id. at *3 (quoting Davis v. Sun Oil Company, 148 F.3d 

606, 614 (6th Cir. 1998) (Boggs, J., dissenting), for the proposition that “requiring an affirmative 

defense to be stated in an intelligible manner is not a mere formalism,” and noting that Rule 8(c) 

“serves the purpose of giving the opposing party notice of the defense and an opportunity to 

argue why his claim should not be barred completely.”). 

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Like other courts in this district, this Court requires attorneys to comply with a continuing 

obligation to eliminate unnecessary boilerplate in their pleadings. See, e.g., Safeco Ins. Co. of 

Am, 2008 WL 2558015 at *1. When boilerplate affirmative defenses are offered with no 

specifics, an opposing party will not have enough information to argue against the defenses. See

Shinew, 2009 WL 1076279, at *3-4 (quoting Davis, 148 F.3d at 614 (Boggs, J., dissenting), for 

the proposition that “[t]he requirement that affirmative defenses be specifically pleaded is based 

on notions of fair play. A party should not have to deal with an extraneous issue in a lawsuit 

unless it is specifically brought to his attention . . . More important, what matters is . . . whether 

the court and the parties were aware of the issues involved.”). Furthermore, by only submitting 

vague boilerplate affirmative defenses, unnecessary work is created and the costs of litigation are 

increased. Safeco Ins. Co. of Am, 2008 WL 2558015 at *1 (“Opposing counsel generally must 

respond to such defenses with interrogatories or other discovery aimed at ascertaining which 

defenses are truly at issue and which are merely asserted without factual basis but in an 

abundance of caution.”). 

 After reviewing the challenged affirmative defenses in this case, the Court finds that they 

are boilerplate and not presently sustainable. Defendant relies on case law not binding on this 

Court to argue to the contrary. With respect to the affirmative defenses themselves, Defendant 

argues that “[a]t such an early stage in the litigation process” it is too early for Plaintiff to assert 

that the affirmative defenses could not succeed under any circumstance. See, e.g., Dkt. No. 10 at 

12-13 (Defendant arguing: “Might it be shown that portions of Plaintiff’s claims arise out of 

ancillary agreements which offend the statute of frauds? Obviously. . . . Could, conceivably, 

Plaintiff’s claims in this matter be barred as a result of mandatory joinder in another of the 

related disputes between the Plaintiff and other, related, Defendants? Undoutbedly.”) 

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 The Court does not dispute that it may be too early for Plaintiff to assert that these 

defenses could not succeed under any circumstance. However, the Court emphasizes that 

Defendant has not set forth any analysis explaining the affirmative defenses, which undercuts 

Plaintiff’s ability to argue why the defenses should be barred. See Safeco Ins. Co. of Am, 2008 

WL 2558015 at *1 (emphasizing that the affirmative defenses submitted by the Defendants in 

that case were insufficient because “[t]here is no analysis regarding the applicability of any of 

the individual affirmative defenses to Plaintiff's complaint. This court requires more than the 

assertion of any and all defenses that may apply.”).1 Requiring an affirmative defense to be stated 

in an intelligible manner is not a mere formalism, and this Court requires more than just 

boilerplate affirmative defenses. As Judge Cleland aptly noted in the Safeco decision, “Rule 15 

allows for appropriate amendments and counsel should therefore feel no need in this court to 

window-dress pleadings early for fear of losing defenses later.” Id.

III. CONCLUSION

Accordingly, for the reasons discussed herein, the Court will GRANT Plaintiff’s Motion, 

and STRIKE Defendant’s affirmative defenses WITHOUT PREJUDICE subject to 

appropriate amendment under Rule 15. 

SO ORDERED. 

Dated: December 1, 2014 

 /s/Gershwin A Drain 

 Hon. Gershwin A. Drain 

 United States District Court Judge 

 

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 For example, Defendant argues that it be shown that portions of Plaintiff’s claims arise out of ancillary agreements 

which offend the statute of frauds. See Dkt. No. 10 at 12. However, Plaintiff does not even name the possible 

agreements. Defendant further argues that, conceivably, Plaintiff’s claims in this matter could be barred as a result 

of mandatory joinder in another related dispute between the Plaintiff and other, related, Defendants. Id. at 13. 

Nevertheless, Plaintiff does not name these other possible disputes. 

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