PAGE 1 – MOTION TO STRIKE AFFIRMATIVE DEFENSES ASSERTED BY 

DEFENDANT THE REED INSTITUTE 

DAVID H. ANGELI, OSB No. 020244 

 david@angelilaw.com 

KRISTEN L. TRANETZKI, OSB. No. 115730 

 kristen@angelilaw.com 

Angeli Ungar Law Group LLC 

121 SW Morrison Street, Suite 400 

Portland, OR 97204 

Telephone: (503) 954-2232 

Facsimile: (503) 227-0880 

COURTNEY W. ANGELI, OSB No. 941765 

 courtney@baaslaw.com 

ROBIN BOWERFIND, OSB No. 035949 

 robin@baaslaw.com 

Buchanan Angeli Altschul & Sullivan LLP 

321 SW 4th Avenue, Suite 600 

Portland, OR 97204 

Telephone: (503) 974-5015 

Facsimile: (971) 230-0337 

Attorneys for Plaintiff John Doe 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

JOHN DOE, 

 Plaintiff, 

 v. 

THE REED INSTITUTE 

(aka, Reed College) and JANE ROE, 

Defendants. 

Case No. 3:15-cv-00617-MO 

MOTION TO STRIKE AFFIRMATIVE 

DEFENSES ASSERTED BY DEFENDANT 

THE REED INSTITUTE 

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DEFENDANT THE REED INSTITUTE 

CERTIFICATE OF COMPLIANCE WITH LR 7-1(a) 

Pursuant to LR 7-1(a), counsel for plaintiff certifies that, prior to filing this motion, 

counsel for plaintiff and defendant The Reed Institute made a good faith effort through written 

communications and telephone conferences to resolve this dispute and have been unable to do 

so. 

MOTION 

Plaintiff John Doe (“John”) moves pursuant to FRCP 12(f) to strike the following sixteen 

affirmative defenses asserted by defendant The Reed Institute (“Reed”): 

 First Additional Defense (Rights of Private College), 

 Second Additional Defense (Compliance with Law), 

 Third Additional Defense (Fair and Equitable Proceedings), 

 Eighth Additional Defense (Failure to State a Claim for Relief), 

 Tenth Additional Defense (Defamation Claim Insufficient as a Matter of Law), 

 Thirteenth Additional Defense (Clear and Present Danger), 

 Fourteenth Additional Defense (After-acquired Evidence), 

 Fifteenth Additional Defense (b), (c) (d) and (e) (Impermissible Requests for 

Relief), 

 Sixteenth Additional Defense (No Private Right of Action for Administrative 

Requirements), 

 Eighteenth Additional Defense (Reasonable Expectations), 

 Nineteenth Additional Defense (Health and Safety), 

 Twenty-First Additional Defense (Adequate Remedy at Law), 

 Twenty-Second Additional Defense (Consequences of Own Conduct), 

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DEFENDANT THE REED INSTITUTE 

 Twenty-Third Additional Defense (Failure to Mitigate), 

 Twenty-Fifth Additional Defense (Disparate Impact not Actionable), and 

 Twenty-Sixth Additional Defense (Trade Practices Theory Insufficient as a 

Matter of Law). 

This motion is supported by the following memorandum of law. 

MEMORANDUM IN SUPPORT 

I. INTRODUCTION 

This action involves false rape allegations against plaintiff John Doe (“John” or “Doe”) 

by his ex-girlfriend and fellow Reed student, defendant Jane Roe (“Jane”), and challenges the 

subsequent, gender-biased and inequitable disciplinary process Reed undertook that resulted in 

plaintiff’s expulsion. Plaintiff brings the following claims against Reed: wrongful expulsion 

(under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq.), 

declaratory judgment (pursuant to 28 U.S.C. § 2201), as well as state law claims for breach of 

contract, breach of the covenant of good faith and fair dealing, unfair or deceptive trade practices 

in violation of ORS 646.605, et seq., and defamation. (See First Amended Complaint 

(“FAC”) ¶¶ 209-289.) 

Reed asserts twenty-six affirmative defenses in its answer to plaintiff’s claims. (See

Defendant The Reed Institute’s Answer and Defenses (“Answer”) ¶¶ 84-116.) Although 

ordinarily counsel for plaintiff would avoid motion practice at this early stage in litigation, given 

the large number of alleged defenses and to make this litigation more manageable, plaintiff 

moves the court to strike sixteen of these defenses as unsupported by the law, unsupported by 

facts alleged in the Answer, redundant, immaterial, and/or impertinent. Fed. R. Civ. P. 12(f) 

(“The court may strike from a pleading an insufficient defense or any redundant, immaterial, 

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DEFENDANT THE REED INSTITUTE 

impertinent, or scandalous matter.”). This matter is likely to involve a substantial summary 

judgment motion practice on both sides, and thus to the extent that the litigation can be focused 

early on the issues that are actually before the court, the process will be more streamlined. While 

generally disfavored, courts grant motions to strike to “avoid spending time and money litigating 

spurious issues” and to bring clarity in a proceeding as to what is in dispute. See Complete 

Distrib. Servs. v. All States Transp., LLC, Case No. 3:13-cv-800-SI, 2015 WL 1393281, at *2-3 

(D. Or. Mar. 25, 2015). 

II. ARGUMENT 

A. Reed’s Thirteenth Additional Defense, Fifteenth Additional Defense (Subsections 

(b), (c), and (d)), and Twenty-First Additional Defense Should Be Stricken Because 

They Are Not Supported by the Relevant Law. 

1. A Defense That Is Not Premised on a Valid Statement of Law Is Legally 

Insufficient. 

An “affirmative defense is a defense that does not negate the elements of the plaintiff's 

claim, but instead precludes liability even if all of the elements of the plaintiff's claim are 

proven.” Barnes v. AT&T Pension Benefit Plan–Nonbargained Program, 718 F. Supp. 2d 1167, 

1171–72 (N.D. Cal. 2010) (quoting Roberge v. Hannah Marine Corp., 124 F.3d 199 (6th Cir 

1997)). As set forth below, Reed’s Thirteenth Additional Defense, entitled “Clear and Present 

Danger,” subsections (b), (c), and (d) of Reed’s Fifteenth Additional Defense, entitled 

“Impermissible Requests for Relief,” and Reed’s Twenty-First Additional Defense, entitled 

“Adequate Remedy at Law,” are subject to a motion to strike under Rule 12(f) because they are 

legally “insufficient.” That is, none of these defenses are premised upon a valid statement of the 

law and thus none can preclude liability on any of plaintiff’s claims. Consequently, it is proper 

for the court to strike them. See, e.g., Complete Distrib. Servs., 2015 WL 1393281, at *3 

(striking affirmative defense of negligence where negligence theory not supported by law). 

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DEFENDANT THE REED INSTITUTE 

a. Reed’s Thirteenth Additional Defense (Clear and Present Danger) Is 

Legally Insufficient. 

In its Thirteenth Additional Defense, entitled “Clear and Present Danger,” Reed alleges 

that: 

Reed’s actions in removing Doe from its campus were justified in 

that it reasonably believed that he presented an unacceptable risk 

and danger to the campus community. (Answer ¶ 98.) 

Reed’s defense seems to justify John’s expulsion as being motivated by its alleged good 

intentions. But if a statutory or common law violation is proved, good intentions are often 

irrelevant. That is the case here. There does not appear to be any “clear and present danger” 

defense to the asserted claims of discrimination in violation of Title IX, breach of contract, or 

any of plaintiff’s other claims. In other words, Reed may show that it believed John presented a 

danger to its community, but that does not address the question of whether its actions were a 

result of gender bias as alleged in plaintiff’s claim for wrongful expulsion (FAC ¶¶209-249), nor 

does it excuse a biased decision in John’s case. Nor do good intentions provide a basis for 

breach of a contractual duty. (FAC ¶¶250-260.) Because there is no basis in the law to contend 

that this defense “precludes liability even if all of the elements of the plaintiff's claim are 

proven,” it is not a proper affirmative defense and thus should be stricken. 

b. Subsections (b), (c), and (d) of Reed’s Fifteenth Additional Defense 

(Impermissible Requests for Relief) are Not Supported by the Law 

and are Impertinent. 

Subsections (b), (c), and (d) of Reed’s Fifteenth Additional Defense, entitled 

“Impermissible Requests for Relief,” assert that the injunctive relief sought by plaintiff is not 

permitted: 

Doe requests relief that is beyond the authority of this court, 

Improper, and unavailable to Plaintiff: 

* * * 

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b. Doe’s demand that Reed alter its academic and disciplinary 

record, expunge his record, and confirm the removal of 

disciplinary findings against him would be in violation of the 

federal and state Constitutions in that it would compel persons to 

make statements when they have a protected constitutional right 

not to make such statements. 

c. Doe’s demand that a person at Reed provide a “notarized letter” 

confirming charges have been expunged would require such a 

person to swear falsely or to imply, falsely, that Doe was not 

disciplined or did not merit discipline, and would result in 

compelled speech, which would be in violation of the federal and 

state Constitutions. Such a representation would also present a 

clear danger to other institutions who might rely on such 

statements and admit Plaintiff as a student, which would allow him 

to continue his dangerous conduct and place others in harm's way. 

d. Doe’s demand that Reed be required to re-enroll Doe after his 

withdrawal and expulsion would represent an unconstitutional 

intrusion upon the freedom of association of the members of 

Reed's academic community. (Answer ¶ 100.) 

Reed’s assertion that the court does not have the authority to award injunctive relief 

under plaintiff’s claims is erroneous. When a right of action exists under a federal statute, there 

is a presumption with “deep roots in our jurisprudence” of the availability of all appropriate 

remedies unless Congress has expressly indicated otherwise: 

“[W]here legal rights have been invaded, and a federal statute 

provides for a general right to sue for such invasion, federal courts 

may use any available remedy to make good the wrong done.” The 

Court explained this longstanding rule as jurisdictional and upheld 

the exercise of the federal courts' power to award appropriate relief 

so long as a cause of action existed under the Constitution or laws 

of the United States. 

Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 66 (1992) (citations omitted). Indeed, the 

U.S. Supreme Court has recognized that it is well within the court’s authority to award equitable 

relief, should plaintiff prevail on Title IX claims. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 

555 U.S. 246, 255 (2009) (“In a suit brought pursuant to this private right [to enforce Section 

901(a) of Title IX], both injunctive relief and damages are available.” (citation omitted)); Cook v. 

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DEFENDANT THE REED INSTITUTE 

Colgate Univ., 802 F. Supp. 737, 751 (N.D.N.Y. 1992) (“The court finds that Colgate is in 

violation of Title IX by not providing equal athletic opportunities to its women’s ice hockey 

players. Therefore, Colgate is ordered to grant the women’s ice hockey team varsity status and 

to provide the team all the amenities that accompany such a designation”), vacated as moot, 

992 F.2d 17 (2d Cir. 1993). 

To the extent that Reed argues that the court does not have the authority to issue the 

specific injunctive relief sought because it, for example, compels a false statement, these 

defenses should also be stricken as impertinent. Such a defense rests on the factual assumption 

that plaintiff was properly disciplined by Reed. A judicial finding that Reed’s actions were 

either discriminatory or in violation of a contractual duty are elements of plaintiff’s prima facie 

case. Should plaintiff successfully prove his prima facie case, only failure to implement the 

relief sought by plaintiff would result in false representations regarding plaintiff’s record. 

Should plaintiff fail to prove his case, no damages will be awarded so this objection is not 

necessary. Therefore, these defenses are also impertinent, or “do not pertain, and are not 

necessary, to the issues in question.” See Section B infra. 

c. Reed’s Twenty-First Additional Defense (Adequate Remedy at Law) 

is Not Supported by the Law.

In its Twenty-First Additional Defense, entitled “Adequate Remedy at Law,” Reed 

incorrectly contends that plaintiff’s legal remedies preclude injunctive relief: 

To the extent that Plaintiff has an adequate remedy at law, his 

complaint for injunctive relief is barred. (Answer ¶ 106.) 

Reed does not identify the claim(s) to which the defense applies and, assuming that it is 

directed at plaintiff’s claim for declaratory judgment and/or its claim for wrongful expulsion 

under Title IX, it is an incorrect statement of the law. Injunctive relief pursuant to plaintiff’s 

claim under The Declaratory Judgment Act, 28 U.S.C. § 2201, is not barred by any remedies he 

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may have at law. FRCP 57 states, “[t]hese rules govern the procedure for obtaining a declaratory 

judgment under 28 U.S.C. § 2201....The existence of another adequate remedy does not preclude 

a declaratory judgment that is otherwise appropriate.” State of Cal. by & Through Dep't of 

Water Res. v. Oroville-Wyandotte Irrigation Dist., 409 F.2d 532, 535 (9th Cir. 1969) (“An 

adequate legal remedy is not a bar to the issuance of declaratory relief.”). Similarly, a remedy at 

law does not bar injunctive relief in a Title IX case. See, e.g., Roberts v. Colorado State Bd. of 

Agric., 998 F.2d 824, 833 (10th Cir. 1993) (“[I]nsofar as defendant's continuing violation of Title 

IX operates to deprive plaintiffs of the opportunity to play softball, we believe monetary relief 

alone is inadequate. The district court correctly ordered an equitable remedy.”). 

B. Subsection (e) of Reed’s Fifteenth Additional Defense, Reed’s Sixteenth Additional 

Defense, and Reed’s Twenty-Fifth Additional Defense Should Be Stricken Because 

They Do Not Relate to Any of Plaintiff’s Claims. 

1. A Defense That Does Not Relate to Plaintiff’s Claims Is Immaterial and/or 

Impertinent. 

Subsection (e) of Reed’s Fifteenth Additional Defense (Impermissible Requests for 

Relief), Reed’s Sixteenth Additional Defense (No Private Right of Action for Administrative 

Requirements), and Reed’s Twenty-Fifth Additional Defense (Disparate Impact not Actionable) 

should be stricken under Rule 12(f) because they are “immaterial” and/or “impertinent.” 

Fed. R. Civ. P. 12(f); see Ionian Corp. v. Country Mut. Ins. Corp., Case No. 3:10-cv-199-HZ, 

2015 WL 632217, at *11-12 (D. Or. Feb. 13, 2015) (striking defendant’s mitigation and unclean 

hands affirmative defenses as immaterial); Supermarket of Homes, Inc. v. San Fernando Valley 

Bd. of Realtors, 786 F.2d 1400, 1409-10 (9th Cir 1986) (affirming district court order striking 

defenses of contract of adhesion, failure to arbitrate and improper injunctive relief because the 

defenses related to issues that were not before the court and therefore were immaterial). 

“Immaterial” matter in a defense “has no essential or important relationship to the claim for 

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DEFENDANT THE REED INSTITUTE 

relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 

1993), rev'd on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 534–535 (1994) (citing 

5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1382, at 70607 (1990)). 

“‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to the 

issues in question.” Id. 

a. Reed’s Fifteenth Additional Defense (Impermissible Requests for 

Relief) is Impertinent. 

Subsection (e) of Reed’s Fifteenth Additional Defense, entitled “Impermissible Requests 

for Relief,” asserts: 

Doe’s demand that Reed be required to re-enroll Doe would be 

futile in that he would immediately be subject to investigation and 

charges for further misconduct discovered after his expulsion. 

(Answer ¶ 100.) 

There is no basis for a defense to relief based on a hypothetical set of events—i.e., further 

charges by Reed about misconduct if plaintiff were to re-enroll pursuant to court order— and 

thus this subpart of the defense is not meaningful or relevant to this dispute; it would also seem 

to create confusion in that it might be viewed as justifying improper argument to the jury. This 

defense is both immaterial and impertinent and should be stricken.

b. Reed’s Sixteenth Additional Defense (No Private Right of Action for 

Administrative Requirements) is Immaterial to Plaintiff’s Claims 

under Title IX. 

Reed’s Sixteenth Additional Defense, entitled “No Private Right of Action for 

Administrative Requirements,” alleges: 

No private right of action for any alleged violation of Dept. of 

Education administrative requirements. (Answer ¶ 101.) 

Because plaintiff’s First Amended Complaint does not assert a private right of action under any 

regulation, this defense is immaterial. Plaintiff’s factual allegations and claims reference federal 

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DEFENDANT THE REED INSTITUTE 

Title IX regulations that govern grievance procedures and due process at educational institutions. 

(See, e.g., FAC ¶¶ 23, 212.) These factual allegations contend that plaintiff was deprived, 

through improper administration of applicable policies and procedures, of his Title IX rights 

because of his sex. Plaintiff properly brings his claims under Title IX of the Education 

Amendments of 1972, 20 U.S.C. § 1681, et seq. There is no question that courts recognize a 

private right of action under Title IX. Cannon v. University of Chicago, 441 U.S. 677 (1979) (a 

private right of action exists to enforce Title IX of the Education Amendments of 1972). 

Because plaintiff’s claims are asserted under the statute itself, and not under any Department of 

Education Administrative rules or regulations, this defense is immaterial; it has no essential or 

important relationship to any claim for relief and should therefore be stricken. 

c. Reed’s Twenty-Fifth Additional Defense (Disparate Impact) is 

Immaterial. 

Reed’s Twenty-Fifth Additional Defense, entitled “Disparate Impact Not Actionable,” 

provides: 

To the extent Plaintiff seeks to recover on the basis of a disparate 

impact, as is alleged in the complaint, such claim fails as a matter 

of law in that Title IX does not permit a challenge based on a 

disparate impact. (Answer ¶ 110.) 

Plaintiff does not bring any action for disparate impact and it is not clear why Reed 

alleges that it does. Plaintiff alleges that discrimination against other male students may be 

relevant evidence of his discriminatory treatment, but has not alleged a disparate impact theory 

in this matter. (See, e.g., FAC ¶¶ 217-222.) While Reed may dispute plaintiff’s contention that 

evidence of disparate treatment supports his claim of discrimination, the defense that disparate 

impact is not actionable is not a basis for an affirmative defense to any of the actions plaintiff 

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DEFENDANT THE REED INSTITUTE 

actually brings.1 This defense is immaterial as it has no essential or important relationship to any 

claim for relief and should therefore be stricken.

C. Reed Fails to Allege Facts in Support of its Fourteenth Additional Defense and 

Twenty-Third Additional Defense that Demonstrate Plausibility of Success. 

1. Defenses Are Insufficient When Defendant Does Not Plead Factual Matter 

That Creates a Plausible Right to Relief. 

Reed’s Fourteenth Additional Defense and Twenty-Third Additional Defense are 

insufficient because they fail to allege factual matters that create a plausible right to relief. In 

2011, this Court considered the applicability of the plausibility standard announced in Bell 

Atlantic v. Twombly, 550 U.S. 544, 570 (2007), and declined to extend its pleading requirements 

to affirmative defenses. Trustmark Ins. Co. v. C & K Mkt., Inc., Case No. 10-465-MO, 2011 WL 

587574, at *1 (D. Or. Feb. 10, 2011). Although the Ninth Circuit has not ruled explicitly on the 

pleading standard applicable to affirmative defenses (and, indeed, no federal circuit has), recent 

decisions by the District of Oregon and other federal district courts in this circuit signal a 

growing acceptance of the plausibility standard announced in Twombly. Even while declining to 

extend Twombly in Trustmark, the Court acknowledged that “the state of the law may be 

                                                             1

 Even if plaintiff were to allege or pursue a disparate impact theory, this defense would 

fail for the additional reason that the statement that “Title IX does not permit a challenge based 

on a disparate impact” is not an accurate statement of the law. Although the Ninth Circuit Court 

of Appeals has not addressed this question, courts in other jurisdictions have readily extended the 

disparate impact theory familiar in employment discrimination claims, to claims of 

discrimination under Title IX cases. See Haffer v. Temple Univ. of the Com. Sys. of Higher 

Educ., 678 F. Supp. 517, 540 (E.D. Pa. 1987) on recons sub nom. Haffer v. Temple Univ. of 

Com. Sys. of Higher Educ., CIV.A. 80-1362, 1988 WL 3845 (E.D. Pa. Jan. 19, 1988) (holding 

that “plaintiffs need not prove discriminatory intent to succeed on their claim” under Title IX). 

Moreover, even if the evidence presented by plaintiff is viewed as disparate impact evidence, it 

is a misstatement of the law to imply that such evidence is not permitted. See Mansourian v. Bd. 

of Regents of Univ. of California at Davis, 816 F. Supp. 2d 869, 917 (E.D. Cal. 2011) (statistical 

evidence of disparate impact may be highly relevant to the determination of whether an 

institution violated Title IX). 

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shifting.” Trustmark Ins. Co, 2011 WL 587574, at *1. Plaintiff asks that the Court reconsider its 

position on the applicable standard in light of the evolution of the case law in this jurisdiction. 

In a notably thorough and well-reasoned opinion, in Hayden v. U.S., Case No. 3:14-cv1060-AC, 2015 WL 350665, *2 (D. Or. Jan. 26, 2015), the court found that “the principles set 

forth in Twombly and Iqbal are the appropriate standard to apply to a motion which challenges 

the factual sufficiency of a pleaded defense.” The Hayden court was persuaded by the analysis 

set forth in the Central District of California decision of Vogel v. Huntington Oaks Delaware 

Partners, LLC: 

Framing the issue as a choice between Twombly's plausibility 

standard and Wyshak's fair-notice standard is misleading, because 

Twombly merely revised the fair-notice standard on which Wyshak

is based. In Wyshak, the Ninth Circuit adopted the prevailing fairnotice standard for pleading complaints and applied it to 

affirmative defenses. Wyshak, 607 F.2d at 827 (citing Conley v. 

Gibson, 355 U.S. 41, 47–48 (1957)). At the time, fair notice was 

defined by Conley v. Gibson, which held that dismissal was 

warranted only if it appeared clear to the court that there were “no 

set of facts” that would entitle the plaintiff to relief. 355 U.S. at 

45–46. But Conley is no longer good law. Twombly and Iqbal

soundly rejected the “no set of facts” standard by holding that fair 

notice requires the pleading of factual matter that creates a 

plausible right to relief * * * 

As a result, Twombly “changed the legal foundation underlying” 

Wyshak, and Twombly's plausibility requirement should apply to 

affirmative defenses just as Conley's “no set of facts” standard did 

before Twombly was decided.... In reaching this decision, the 

[c]ourt recognizes that nowhere in the text of Twombly, Iqbal, nor 

Conley does the Supreme Court discuss affirmative defenses. But 

simply because the issue was not before the Supreme Court does 

not mean Twombly's logic applies with any less force to 

affirmative defenses. 

Hayden, 2015 WL 350665, at *3-4. In adopting the Twombly standard for affirmative defenses 

in Hayden, Judge Simon (adopting the opinion of Magistrate Judge Acosta) reasons that: 

 

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[A] party is held to the same “short and plain” content requirement 

whether asserting a claim for relief or asserting a defense to a 

claim for relief..... Accordingly, it is inconsistent and 

unsupportable under the Rules to apply different standards to 

identical terms used in the same Rule, particularly when nothing 

contained in the Rule itself or in the Advisory Committee Notes 

suggests the drafters intended a complaint be treated differently 

from an answer.... 

The second consideration is that a defense is, in effect, a claim for 

relief..... There is no logic to holding plaintiff to the more exacting 

Twombly and Iqbal standard while allowing defendant to continue 

to shelter under the more lenient pre-Twombly and Iqbal standard 

when both plaintiff and defendant have the same burden to prove 

that which they allege in their respective pleadings.... 

Third, notice pleading applies in federal court, even still, 

notwithstanding that Twombly and Iqbal imposed a more exacting 

notice pleading standard. Again, logic dictates that both sides’ 

pleadings be treated similarly for this purpose: the detail required 

under Twombly and Iqbal to constitute sufficient notice of the basis 

for a defense should be the same detail required to constitute 

sufficient notice of the basis for a claim for relief.... 

Although the Ninth Circuit has yet to rule on the issue, the 

majority of district courts addressing the issue have required 

affirmative defenses to meet the heightened pleading standard 

dictated by the Supreme Court in Twombly and Iqbal....

Lastly, the policy underlying Twombly and Iqbal’s plausibility 

requirement applies with equal force to defenses. The Supreme 

Court recognized that tightening notice pleading to require 

plausibility serves an important gate-keeping function by cutting 

off vague or even frivolous claims early, thus avoiding the time 

and expense of unnecessary or far-ranging discovery. 

Id. at 4-6. 

 In its Fourteenth Additional Defense and Twenty-Third Additional Defense, Reed has not 

alleged “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 

at 570. Although Reed is not required to set forth detailed factual allegations, it must allege the 

grounds for entitlement to relief beyond mere labels and conclusions. Id. at 555.2

 Plaintiff 

                                                            

2 Even if this Court does not recognize the Twombly defense as applicable to affirmative 

defenses, Reed’s Fourteenth Additional Defense and Twenty-Third Additional Defense fail to 

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submits that the state of the law has indeed shifted and urges this Court to adopt the Twombly

standard for affirmative defenses. 

2. Reed’s Fourteenth Defense (After-Acquired Evidence) is Not Supported by 

Sufficient Factual Allegations. 

Reed’s Fourteenth Additional Defense, entitled “After-acquired Evidence,” states: 

Subsequent to Doe’s expulsion Reed learned of additional conduct 

which reasonably justified expulsion and which precludes the relief 

sought by Doe. In particular, that conduct learned after Doe's 

expulsion would result in his being denied permission to re-enter 

Reed or, if he should, would result in immediate conduct charges 

against him. Moreover, the nature of Doe's collected misconduct 

stands as a bar to Reed making a report to others that Doe does not 

present a risk of harm. Roe is not the only woman who has 

reported Doe's use of illegal drugs and alcohol to intoxicate or 

incapacitate women in order to facilitate his sexual encounters with 

them. (Answer ¶ 99.) 

Reed fails to provide any factual support to put plaintiff on notice as to the nature of the evidence 

of plaintiff’s conduct after his expulsion that Reed intends to assert as relevant to the claim, and 

therefore does not set out facts that state a plausible claim for relief. See Johnson v. City of 

Elgin, 2001 WL 199506, *2 (N.D. Ill. Feb. 28, 2001) (“To properly plead this defense, 

Defendants must allege: (1) existence of after-acquired evidence of employee-wrongdoing and 

(2) this wrongdoing would have led to employee’s dismissal.”). Reed merely alleges that “after 

Doe’s expulsion Reed became aware of still more acts of misconduct which, individually and 

collectively, would also have independently justified the sanction of expulsion.” (Answer ¶ 2.) 

This is a conclusory statement that does not supply any facts to demonstrate that success is 

plausible. Furthermore, even if this defense were supported by sufficient facts to state a claim to 

                                                                                                                                                                                               

provide adequate notice under the Wychak “fair notice” standard in any event. Wyshak v. City 

Nat’l Bank., 607 F.2d 824, 827 (9th Cir. 1979) (“The key to determining the sufficiency of 

pleading is whether it gives plaintiff fair notice of the defense”); Advanced Cardiovascular Sys. 

v. Scimed Sys., 1996 WL 467277, *3 (N.D. Cal July 24, 1996) (“Defendant’s general reference to 

a series of statutory provisions does not provide plaintiff with fair notice of the basis for this 

defense.”).   

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relief plausible on its face, it must also be stricken because it misstates the law on after-acquired 

evidence, as after-acquired evidence does not preclude the relief sought by plaintiff. McKennon 

v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). 

3. Reed’s Twenty-Third Additional Defense (Failure to Mitigate) is Not 

Supported by Sufficient Factual Allegations. 

Reed’s Twenty-Third Additional Defense, entitled “Failure to Mitigate,” states: 

If damaged, Plaintiff failed to make reasonable efforts to mitigate 

any damages. (Answer ¶108.) 

Reed does not allege any facts evidencing a failure to mitigate, or even explain how such a 

defense might apply to this case. To the extent that Reed expects to discover evidence that 

plaintiff has failed to mitigate but does not yet have those facts, this defense is premature. 

Defenses based on evidence that might surface are not timely pled at this time; should evidence 

come to light supporting unpled defenses, Reed has a right to assert them in the future. See

Gessele v. Jack in the Box, Inc., Case No. 3-10-cv-960-ST, 2011 WL 3881039, *2 (D. Or. Sept. 

2, 2011) (“[D]efendants are encouraged to eschew the all too common practice of alleging a 

litany of boilerplate affirmative defenses with the view of dropping them later if discovery fails 

to support them. Reed should only plead affirmative defenses that it believes in good faith to 

have sufficient factual and/or legal support. If discovery later uncovers a basis to allege another 

affirmative defense, then defendants are free to seek to amend the answer to add it.”). 

D. Defenses that Merely Rebut Plaintiff’s Claims Should Be Stricken as Redundant. 

The following nine defenses set out by Reed are merely redundant rebuttals and denials 

of plaintiff’s allegations, or just plain rhetorical flourish: First Additional Defense (Rights of 

Private College), Second Additional Defense (Compliance with Law), Third Additional Defense 

(Fair and Equitable Proceedings), Eighth Additional Defense (Failure to State a Claim for 

Relief), Tenth Additional Defense (Defamation Claim Insufficient as a Matter of Law), 

Case 3:15-cv-00617-MO Document 22 Filed 06/05/15 Page 15 of 18
PAGE 16 – MOTION TO STRIKE AFFIRMATIVE DEFENSES ASSERTED BY 

DEFENDANT THE REED INSTITUTE 

Eighteenth Additional Defense (Reasonable Expectations), Nineteenth Additional Defense 

(Health and Safety), Twenty-Second Additional Defense (Consequences of Own Conduct)3

, and 

Twenty-Sixth Additional Defense (Trade Practices Theory Insufficient as a Matter of Law). “A 

defense which demonstrates that plaintiff has not met its burden of proof as to an element 

plaintiff is required to prove is not an affirmative defense.” Zivkovic v. S. California Edison Co.,

302 F.3d 1080, 1088 (9th Cir. 2002). As this court has explained: 

Such a defense is merely rebuttal against the evidence presented 

by the plaintiff. On the other hand, “[a]n affirmative defense, 

under the meaning of Federal Rule of Civil Procedure 8(c), is a 

defense that does not negate the elements of the plaintiff's claim, 

but instead precludes liability even if all of the elements of the 

plaintiff's claim are proven.” Roberge v. Hannah *1174 Marine 

Corp., No. 96–1691, 1997 WL 468330, at *3 (6th Cir.1997). It is 

a defense on which the defendant has the burden of proof. See, 

e.g., Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 

492 n. 4 (9th Cir.1988). Thus, it is curious that defendant asserts 

as affirmative defenses that which it need not prove. 

To the extent that the AT & T restates negative defenses that exist 

in other parts of the complaint, those defenses are redundant 

pursuant to Rule 12(f) and should be struck so as to simplify and 

streamline the litigation. Federal Trade Comm'n v. Think All Pub. 

L.L.C., 564 F.Supp.2d 663, 665 (E.D. Tex. 2008). 

Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173-74 

(N.D. Cal. 2010). 

                                                            

3

  Reed’s Twenty-Second Additional Defense, entitled “Consequences of Own Conduct” 

states: 

If Plaintiff was damaged, it was a result of his own conduct as 

alleged above and as discovered after his expulsion. 

(Answer ¶ 107.) 

Plaintiff interprets this defense as a rebuttal of plaintiff’s claim for causation of damages and 

therefore as a redundant. To the extent that Reed intends this as a restatement of its afteracquired evidence defense, it should be stricken for the same reasons as Reed’s Fourteenth 

Additional Defense. 

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PAGE 17 – MOTION TO STRIKE AFFIRMATIVE DEFENSES ASSERTED BY 

DEFENDANT THE REED INSTITUTE 

To streamline this litigation and clarify the defenses at issue, the court should strike these 

defenses as redundant. See Barnes, 718 F. Supp. 2d at 1173-74 (striking as mere rebuttal of 

plaintiff’s claims AT&T’s second, third, fourteenth, seventeenth, eighteenth, nineteenth, twentysecond and twenty-third affirmative defenses because they “simply provide a basis to negate an 

element of Barnes’ prima facie case for relief and are restatements of denials present in earlier 

parts of the complaint.”); Minns v. Advanced Clinical Employment Staffing LLC, 13-CV-03249-

SI, 2014 WL 5826984, at *4 (N.D. Cal. Nov. 10, 2014) (striking denials disguised as affirmative 

defenses). 

III. CONCLUSION 

For all the foregoing reasons, the Court should grant plaintiff’s motion to strike defendant 

Reed’s First Additional Defense; Second Additional Defense; Third Additional Defense; Eighth 

Additional Defense; Tenth Additional Defense; Thirteenth Additional Defense; Fourteenth 

Additional Defense; Fifteenth Additional Defense (b), (c), (d), and (e); Sixteenth Additional 

Defense; Eighteenth Additional Defense; Nineteenth Additional Defense; Twenty-First 

Additional Defense; Twenty-Second Additional Defense; Twenty-Third Additional Defense; 

Twenty-Fifth Additional Defense; and Twenty-Sixth Additional Defense. 

 

Case 3:15-cv-00617-MO Document 22 Filed 06/05/15 Page 17 of 18
PAGE 18 – MOTION TO STRIKE AFFIRMATIVE DEFENSES ASSERTED BY 

DEFENDANT THE REED INSTITUTE 

DATED this 5th day of June, 2015. 

ANGELI UNGAR LAW GROUP LLC 

By: s/ David Angeli 

 David H. Angeli, OSB #020244 

 Kristen L. Tranetzki, OSB #115730 

 Telephone: (503) 954-2232 

 

BUCHANAN ANGELI ALTSCHUL & 

SULLIVAN LLP 

 Courtney W. Angeli, OSB #941765 

 Robin Bowerfind, OSB #035949 

 Telephone: (503) 974-5015 

 Attorneys for Plaintiff John Doe 

Case 3:15-cv-00617-MO Document 22 Filed 06/05/15 Page 18 of 18