UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHAEL WILSON and )

BETTY WILSON DAVIS, as )

guardian over the Estate and Person )

of Michael Wilson, )

Plaintiffs, )

) 

v. )

)

MOHAMMAD ZEESHAN )

TARIQ and KAHKASHAN )

TRANSPORTATION, INC., )

Defendants, ) CAUSE NO. 2:15-CV-321-PPS-JEM 

___________________________________ )

)

MOHAMMAD ZEESHAN TARIQ and )

KAHKASHAN TRANSPORTATION, ) 

INC., )

Counter-Claimants, )

)

v. )

)

MICHAEL WILSON, )

Counter-Defendant. )

OPINION & ORDER

This matter is before the Court on Plaintiffs’ Motion to Strike [DE 24], filed by Plaintiffs on

May 3, 2016. Plaintiffs ask that the Court strike from Defendants’ Answer [DE 23] three affirmative

defenses. On May 16, 2016, Defendants filed a response [DE 27], and on May 23, 2016, Plaintiffs

filed their reply [DE 28]. 

I. Standard

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

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.

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P. 12(f). Motions to strike are generally disfavored, but when striking portions of a pleading

“remove[s] unnecessary clutter from the case,” the motion may “serve to expedite, not delay.” 

Heller v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Ultimately, whether to

strike material under Rule 12(f) is within the sound discretion of the Court. Talbot v. Robert

Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).

II. Analysis

Plaintiffs’ Amended Complaint alleges that Plaintiff Michael Wilson (“Michael”) was

injured when his car collided with a semi-truck owned and operated by Defendants. Defendants

assert twelve affirmative defenses, three of which are the subject of Plaintiffs’ Motion to Strike. 

A. Third Affirmative Defense

In their third affirmative defense, Defendants allege that Michael’s injuries were caused by

an inoperable air bag, and that Hyundai Corporation, as the “designer and manufacturer” of

Michael’s car, was responsible for his injuries. Plaintiffs argue that Defendants are barred from

asserting this nonparty defense under Indiana’s Comparative Fault Act. 

Under the Comparative Fault Act, a defendant “in an action based on fault . . . may assert

as a defense that the damages of the claimant were caused in full or in part by a nonparty.” Ind. Code

§ 34-51-2-14. For the purposes of the Act, “nonparty” is defined as “a person who caused or

contributed to cause the alleged injury, death, or damage to property but who has not been joined

in the action as a defendant.” Ind. Code § 34-6-2-88.

The Comparative Fault Act contains multiple limitations on how and when a defendant may

assert a nonparty defense. Under § 34-51-2-16, a “nonparty defense that is known by the defendant

when the defendant files the defendant’s first answer shall be pleaded as a part of the first answer.”

But where a defendant “gains actual knowledge of a nonparty defense after the filing of an answer,”

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that defendant “may plead the defense with reasonable promptness.” Ind. Code § 34-51-2-16. 

Here, Defendants did not include the Hyundai nonparty defense in their first Answer.

However, in a Motion to Amend [DE 15] their original answer, Defendants represented that they did

not discover the alleged airbag defect until they conducted discovery in this case. Ultimately, the

Court denied Defendants’ Motion to Amend as moot [DE 21], since Plaintiffs moved to amend the

original complaint. Accordingly, the Court finds that, although Defendants did not assert the

nonparty defense in their “first answer,” they pleaded the defense with “reasonable promptness”

after “gain[ing] actual knowledge of a nonparty defense” through discovery in this case, satisfying

the requirements of the Comparative Fault Act. 

However, in certain situations, the Comparative Fault Act imposes additional requirements

on a defendant pleading a nonparty defense. Section 34-51-2-16 (“Section 16”) provides, in relevant

part: 

However, if the defendant was served with a complaint and summons

more than one hundred fifty (150) days before the expiration of the

limitation of action applicable to the claimant’s claim against the

nonparty, the defendant shall plead any nonparty defense not later

than forty-five (45) days before the expiration of that limitation of

action. The trial court may alter these time limitations or make other

suitable time limitations in any manner that is consistent with: 

(1) giving the defendant a reasonable opportunity to discover

the existence of a nonparty defense; and 

(2) giving the claimant a reasonable opportunity to add the

nonparty as an additional defendant to the action before the

expiration of the period of limitation applicable to the claim.

Ind. Code § 34-51-2-16 (emphasis added). 

The parties agree that any claim Plaintiffs might have against Hyundai Corporation as the

“designer and manufacturer” of Michael’s vehicle was barred by the relevant statute of repose at the

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time Plaintiffs filed both the original and amended complaints. Plaintiffs argue that, because they

cannot assert that claim against Hyundai, Defendants also cannot allege that Hyundai is an at-fault

nonparty. In Plaintiffs’ words, “Defendants have not given [Plaintiff] ‘a reasonable opportunity to

add the nonparty as an additional defendant to the action before the expiration of the period of

limitation applicable to the claim’ against Hyundai, as required by [Section 16].” 

But Plaintiffs’ reliance on the “reasonable opportunity” language of Section 16 is misplaced.

The Court considers whether Plaintiffs have had a “reasonable opportunity to add [a] nonparty as

an additional defendant” only when altering Section 16’s 150-day and 45-day pleading requirements.

By the statute’s own terms, those timing requirements are implicated only where a defendant “was

served with a complaint . . . more than one hundred fifty (150) days before the expiration of the

limitation of action applicable to the claimant’s claim against the nonparty.” Ind. Code § 34-51-2-16.

Plaintiffs admit that they filed and served the Complaint long after the statute of repose

lapsed on any potential claims against Hyundai for manufacturing or design defects. As a result, the

150-day and 45-day requirements were not implicated, and the Court had no reason to “alter [those]

time limitations” by considering the “reasonable opportunity” factors. See Ind. Code § 34-51-2-16. 

Plaintiffs cite Terre Haute Warehousing Services v. Grinnell Fire Protection Systems Co.,

193 F.R.D. 554 (S.D. Ind. 1999) for the proposition that Section 16 “requires a plaintiff to have a

reasonable opportunity to sue a nonparty only after the defendant has identified and sought to plead

the nonparty.” But this case is distinguishable from Terre Haute Warehousing in a significant way.

There, the plaintiffs “filed their complaint more than 150 days before the expiration of the statute

of limitations.” Terre Haute Warehousing, 193 F.R.D. at 556. Accordingly, under Section 16, the

defendants in that case were required “to plead any nonparty defenses no later than 45 days” before

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the nonparty statute of limitations expired. Id. Instead, the defendants pleaded their nonparty defense

fifteen months late. Id. Only then did the court consider whether “plaintiffs [had] a reasonable

opportunity to add [the nonparty] as an additional defendant . . . before the expiration of the statute

of limitation.” Id. 

This Court need not go that far, as Plaintiffs did not serve their complaint 150 days before

the expiration of their right to assert a claim against Hyundai. Indeed, the Terre Haute Warehousing

court acknowledged that “Section 16 apparently permits defendants who are served less than 151

days before expiration to plead a nonparty defense ‘with reasonable promptness’ regardless of the

period of limitation.” Id. at 559, fn. 10. As discussed, Defendants satisfied Section 16’s “reasonable

promptness” standard.

The Court acknowledges that this permits Defendants to cast blame for Michael’s injuries

on a party from which Plaintiffs may not recover. However, Indiana law explicitly permits this

result. Rana v. Tanglewood Ltd. Partnership, No. 2:7-CV-212, 2008 WL 5111357, at *3 (N.D. Ind.

Dec. 2, 2008) (citations omitted) (under Indiana law “a party does not have to be capable of being

held liable to the plaintiff in order to be named a nonparty defendant”). 

Accordingly, the Court denies Plaintiffs’ motion to strike Defendants’ third affirmative

defense under Rule 12. 

B. Fourth Affirmative Defense

Plaintiffs also ask the Court to strike Defendants’ fourth affirmative defense, which alleges

that “[t]he proximate, actual, and responsible cause of the incident for which [this] suit has been

filed is the acts and/or omission of others, and not the answering defendants.” Plaintiffs argue that

this defense impermissibly alleges that anonymous nonparties are to blame for Michael’s injuries.

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Defendants assert that this affirmative defense is merely a proximate cause defense, rather than a

nonparty defense. 

Indiana law requires that “a defendant who intends to use a nonparty defense must

specifically name the nonparty.” Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 913

(Ind. 2001). “The defendant bears the burden of pleading and proving the specific name of the

nonparty.” Cota v. Pinkington North America, Inc., 2013 WL 1703571, at *2 (N.D. Ind. Apr. 13,

2013) (citations omitted).

Defendants’ fourth affirmative defense is inadequate under Indiana law, as it does not name

any specific nonparty who might be liable for Michael’s injuries. Furthermore, for the Court to

consider Defendants’ fourth affirmative defense as a proximate cause defense – as Defendants

request – would be inappropriate. Proximate cause is a required element of Plaintiffs’ claims.

Defendants’ position throughout this case, no doubt, will be that Plaintiffs have not established that

element. But this position is not an affirmative defense, as it is simply an attempt to challenge

Plaintiffs’ proof of proximate cause. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th

Cir. 2012) (“[A] defense is an affirmative defense (a) if the defendant bears the burden of proof

under state law or (b) if it does not controvert the plaintiff’s proof.”) (quotations and alterations

omitted). 

The Court finds that Defendants’ fourth affirmative defense is impermissible under Indiana

law in that it does not name a specific nonparty. Furthermore, Defendants deny Plaintiffs’ ability

to show proximate cause elsewhere in the Answer. Accordingly, to “remove unnecessary clutter

from [this] case,” the Court strikes Defendants’ fourth affirmative defense. Heller, 883 F.2d at 1294.

C. Seventh Affirmative Defense

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Plaintiffs also request that the Court strike Defendants’ seventh affirmative defense, in which

Defendants assert that Plaintiffs failed to preserve evidence because they did not “take steps to

preserve [Michael’s] vehicle.” Defendants argue that spoliation is an independent tort under Indiana

law and, as such, is an appropriate affirmative defense. 

“Indiana is one of few jurisdictions that recognizes the tort [of spoliation], which is analyzed

either as a species of negligence or under the rubric of intentional interference with prospective or

actual civil litigation.” J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1032 (7th Cir. 2005)

(citations omitted). However, the tort is unavailable as applied to parties directly involved in the

underlying lawsuit. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 355 (Ind. 2005) (“Indiana

law does not recognize a claim for ‘first-party’ negligent or intentional spoliation of evidence.”) 

Defendants assert that Plaintiffs did not preserve evidence relevant to the underlying claims

in this case. This “first-party” spoliation allegation is not a standalone tort under Indiana law.

Gribben, 824 N.E.2d at 355. Accordingly, Defendants’ seventh affirmative defense is insufficient

as an independent tort claim for spoliation.

It is, however, “well-established in Indiana law that intentional first-party spoliation of

evidence may be used to establish an inference that the spoliated evidence was unfavorable to the

party responsible.” “ Gribben, 824 N.E.2d at 351 (citations omitted). Plaintiffs admit that “spoliation

may at most give rise to an evidentiary inference at trial.” But Plaintiffs provided no argument why

Defendants cannot assert the non-tort variety of spoliation as an affirmative defense. 

Federal Rule of Civil Procedure 8(c) provides a non-exclusive list of affirmative defense.

Spoliation is not specifically listed. See Fed. R. Civ. P. 8(c)(1). There are “two approaches for

determining whether a defense not specifically enumerated in Rule 8(c) is an affirmative defense:

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a defense is an affirmative defense (a) if the defendant bears the burden of proof under state law or

(b) if it does not controvert the plaintiff’s proof.” Winforge, 691 F.3d at 872. Read as the non-tort

variety of spoliation, Defendants’ seventh affirmative defense passes both tests. 

Defendants’ seventh affirmative defense is not an “insufficient defense” and is not

“redundant, immaterial, impertinent, or scandalous matter.” See Fed. R. Civ. P. 12(f). Accordingly,

the Court denies Plaintiffs’ request that Defendants’ seventh affirmative defense be stricken.

III. Conclusion

Consistent with the foregoing discussion, the Court hereby GRANTS in part and DENIES

in part Plaintiffs’ Motion to Strike Defendants’ Answer to Plaintiffs’ First Amended Complaint [DE

24] and STRIKES the Defendants’ fourth affirmative defense from Defendants’ Answer to

Plaintiffs’ First Amended Complaint for Damages and Counterclaim [DE 23]. 

SO ORDERED this 13th day of October, 2016.

s/ John E. Martin

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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