The Sixth Circuit “has not addressed the precise issue of whether the
Twombly/lqbal heightened pleading standard applies to affirmative defenses.”
Depositors Ins. Co. v. Estate of Ryan, 637 F. App'x 864, 869 (6th Cir. 2016).
Nevertheless, in King v. Taylor, 694 F.3d 650 (6th Cir. 2012), a post-/qba/
decision, the court held that a defense alleging that “[t]he Complaint should be
dismissed due to insufficient service of process” was pled with “sufficient
specificity.” /d. at 657. The court further noted:

An answer is no place to lay out the detailed basis for a Rule 12(b)

defense. Cf. Johnson Assocs. Corp. v. HL Operating Corp., 680 F.3d

713, 718 (6th Cir.2012) (“The filing of an answer is, after all, the

main opportunity for a defendant to give notice of potentially

dispositive issues to the plaintiff.” (emphasis added)). Details and

arguments are what motions are for. Rule 12(h)(1)(B) appears to
recognize this point, for it requires a defendant to either (i) “make” an
insufficient-service defense in a pre-answer motion or (ii) simply

“include” the defense in the answer. The rule gives a defendant the

option to preserve the defense in either manner, provided he has not

already filed a motion under Rule 12 that did not assert the defense.

Requiring motion-like argument in an answer would eliminate the

option the rule provides.

Id. See also Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009)
(“The Federal Rules of Civil Procedure do not require a heightened pleading
standard for a statute of repose defense.”).

My colleagues within this district are split on the question of whether a
heightened pleading standard applies to affirmative defenses. Compare Sprint
Solutions, 2014 WL 5469877, at *2 (S.D. Ohio Oct. 28, 2014) (Sargus, J.)
(declining to apply 7wombly/qbal pleading standard to affirmative defenses) with

Doe v. Bd. of Educ. of Highland Local Sch. Dist., No. 2:16-cv-254, 2017 WL


Defendants note, Fed. R. Civ. P. 15(a) expressly permits amendments to be made

throughout the course of the litigation “when justice so requires.” Accordingly,
courts in this district have often refused to strike such a reservation of rights from
an Answer. Sprint Sols., Inc. v. Shoukry, No. 2:14-cv-00127, 2014 WL
5469877, at *4 (S.D. Ohio Oct. 28, 2014). See also Hiles v. Army Review Bad.
Agency, No. 1:12-cv-673, 2014 U.S. Dist. LEXIS 171067, at *7 (S.D. Ohio Dec.
10, 2014) (“The Court finds no compelling reason to strike defendant's reservation
of its right to amend its answer to raise additional defenses that may become
apparent as this litigation proceeds, particularly given that defendant retains this
right subject to the Federal Rules and the rules of this Court even absent a
reservation of the right.”).?

The Court turns next to Plaintiff's argument that the defenses asserted fail
to satisfy the “plausibility” standard set forth in Be// Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007), and Ashcroft v. /qbal, 556 U.S. 662, 678 (2009),
whereby a complaint must contain “enough facts to state a claim for relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Although Twombly and

Ashcroft applied this pleading standard only to complaints, Plaintiff seeks to extend

it to affirmative defenses.

? Nevertheless, as Judge Sargus noted in Sprint Solutions, “Defendants will be
constrained by the limits of Rule 15 and this Court’s scheduling order and cannot
provide themselves any greater rights by setting forth such assertions in its
answer.” 2014 WL 5469877, at *4.


3588727, at *2 (S.D. Ohio Aug. 21, 2017) (Marbley, J.) (applying Twombly/Iqbal
pleading standard to affirmative defenses).

Having reviewed the differing rationales, the undersigned joins with those
colleagues who have held that the heightened pleading standard does not apply to
affirmative defenses. As Judge Smith recently noted in Ruff v. Credit Adjustment,
Inc., No. 2:18-cv-351, 2018 WL 4019464 (S.D. Ohio Aug. 23, 2018):

Declining to apply the 7wombly/gbal standard to defenses is

consistent with Rule 8. Rule 8(a)(2) requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Conversely, Rule 8(c)(1) merely requires that

“[i]n responding to a pleading a party must affirmatively state any

avoidance or affirmative defense... .”

Id. at *2. See also High 5 Sportswear, Inc. v. High 5 Gear, Inc., No. 3:15-CV-
00401, 2016 WL 4126518, at *3 (S.D. Ohio Aug. 3, 2016) (Rose, J.) (explaining
reasons for rejecting the 7wombly/lqgba/ standard with respect to affirmative
defenses).

The Sixth Circuit has held that “[aln affirmative defense may be pleaded in
general terms and will be held to be sufficient . . . as long as it gives plaintiff fair
notice of the nature of the defense.” Lawrence v. Chabot, 182 F. App'x 442, 456
(6th Cir. 2006) (quoting 5 Wright & Miller, Federal Practice and Procedure
§ 1274). As previously noted, the Sixth Circuit has adhered to this standard even

after Twombly and /qbal. See King, 694 F.3d at 657; Montgomery, 580 F.3d at

468.


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STATE OF OHIO, ex re/.
MICHAEL DEWINE, OHIO
ATTORNEY GENERAL,
Plaintiff, : Case No. 3:18-cv-142

Vv. JUDGE WALTER H. RICE

GLOBE MOTORS, INC., et a/.,
Defendants.

DECISION AND ENTRY OVERRULING PLAINTIFF STATE OF OHIO’S
MOTION TO STRIKE ELEVEN OF DEFENDANT GLOBE MOTORS,
INC.’S DEFENSES (DOC. #28) AND PLAINTIFF STATE OF OHIO’S
MOTION TO STRIKE TWENTY-TWO OF DEFENDANT NORTHRUP
GRUMMAN SYSTEMS CORPORATION'S DEFENSES (DOC. #29)

Plaintiff, State of Ohio, has brought cost recovery claims under § 107(a) of
the Comprehensive Environmental Response, Compensation and Recovery Act
(“CERCLA”), 42 U.S.C. § 9607(a), against Globe Motors, Inc., and Northrop
Grumman Systems Corporation. It has also asserted several state law claims
against these Defendants. This matter is currently before the Court on two
pending motions: (1) Plaintiff State of Ohio’s Motion to Strike Eleven of Defendant
Globe Motors, Inc.'s Defenses (Doc. #28); and (2) Plaintiff State of Ohio’s Motion
to Strike Twenty-Two of Defendant Northrup Grumman Systems Corporation's

Defenses (Doc. #29). For the reasons set forth below, both motions are overruled.


Accordingly, the Court rejects Plaintiff's argument that Defendants’ failure to
support each stated defense with sufficient factual allegations justifies striking
these defenses from the Answers. As noted in King, Defendants, in their
dispositive motions, will have the opportunity to flesh out the factual allegations to
support their defenses. 694 F.3d at 657. The defenses, as alleged in the
Answers, are sufficient to give Plaintiffs “fair notice” of the nature of each
defense. For now, that is all that is required. Defendants need not “lay out the
detailed basis for a Rule 12(b) defense.” /d. Nor are they required to “expressly
link each defense to specific claims.” Sprint Solutions, 2014 WL 5469877, at *4.

For the reasons stated above, the Court OVERRULES Plaintiff State of
Ohio’s Motion to Strike Eleven of Defendant Globe Motors, Inc.’s Defenses (Doc.
#28); and (2) Plaintiff State of Ohio’s Motion to Strike Twenty-Two of Defendant

Northrup Grumman Systems Corporation’s Defenses (Doc. #29).

Date: July 22, 2019 (fare rnGer
WALTER H. RICE
UNITED STATES DISTRICT JUDGE



Rule 12(f), governing motions to strike, provides as follows:

The court may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter. The court

may act: (1) on its own; or (2) on motion made by a party either

before responding to the pleading or, if a response is not allowed,

within 21 days after being served with the pleading.

Fed. R. Civ. P. 12(f).

As an initial matter, Northrup Grumman argues that Plaintiff's motion to
strike should be denied as untimely, having been filed 98 days after Plaintiff was
served with the Answer. Northrup Grumman acknowledges that Plaintiff's motion
was filed on October 29, 2018, the deadline jointly recommended by the parties,
in the original and amended Rule 26(f) Reports, for filing motions directed to the
pleadings. It argues, however, that by the time the original Rule 26(f) Report was
filed, the 21-day period for filing motions to strike under Rule 12(f) had already
expired. In the interest of fairness, the Court will consider the merits of Plaintiff's
motion despite its apparent untimeliness. See Deluca v. Michigan, No. 06-12552,
2007 WL 1500331, at *1 (E.D. Mich. May 23, 2007) (given that Rule 12(f)
allows the court to strike matter sua sponte at any time, the court also has
authority to consider untimely motions).

In its motions to strike, Plaintiff notes that Defendants have not specified
which defenses apply to which claims. Plaintiff generally argues that: (1) some of
the defenses asserted are legally insufficient with respect to the CERCLA claim,

and should be stricken with prejudice as to that claim; (2) a reservation of the right

to amend the Answers to supplement the defenses asserted is improper and should


be stricken with prejudice; and (3) that the defenses asserted fail to meet the
“plausibility” standard set forth in 7womb/y//gbal and should be stricken without
prejudice. '

The Sixth Circuit has cautioned that the “drastic” remedy of striking a
pleading should be granted “only when the pleading to be stricken has no possible
relation to the controversy.” Brown v. Williamson Tobacco Corp. v. U.S., 201
F.2d 819, 822 (6th Cir. 1953). “Motions to strike are viewed with disfavor and
are not frequently granted.” Operating Engineers Local 324 Health Care Plan v. G
& W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015). The Court agrees with
Defendants that none of the grounds asserted by Plaintiff warrants striking the
defenses from the Answers.

While it is true that some of the defenses asserted may be legally
insufficient under CERCLA, a strict liability statute, this does not mean that they
are also legally insufficient with respect to the state law claims. Because it cannot
be said that these defenses have “no possible relation to the controversy,” it would
be inappropriate to strike them from the Answers.

The Court also rejects Plaintiff's argument that a reservation of the right to

amend the Answers to assert additional defenses is per se improper. As

' More specifically, Plaintiff asks the Court to strike Globe Motors’ defenses
number 4-7, 9-11, 13 and 15 with prejudice, and defenses number 3 and 14
without prejudice. Doc. #28. Plaintiff asks the Court to strike Northrup
Grumman's defenses number 9-11, 13, and 18-27 with prejudice, and defenses
number 2, 5, 7, 8, 12, 14, 15 and 17 without prejudice.

3