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de Haan Law Firm, PLLC and Kezhaya Law PLC

101 E. Pennington St. 1202 NE McClain Rd.

Suite 201 Bentonville, Arkansas 72712

Tucson, Arizona 85701 phone: (479) 431-6112

Telephone: (520) 358-4089 fax: (479) 282-2892

Facsimile: (520) 628-4275 email: matt@kezhaya.law

Stuart P. de Haan, State Bar No. 26664 Matthew A. Kezhaya, phv, Ark. Bar # 2014161

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

The Satanic Temple, Inc.;

Michelle Shortt;

United Federation of Churches, LLC

(dba “The Satanic Temple;”)

Adversarial Truth LLC (dba “The Satanic 

Temple – Arizona Chapter;”) and

The Satanic Temple, a voluntary group of 

persons, without an Arizona charter, formed 

by mutual consent for the purpose of 

promoting a common enterprise or 

prosecuting a common objective

Plaintiffs,

v.

City of Scottsdale,

Defendant

 Case No. 18-cv-00621-DGC

PLAINTIFFS’ MOTION TO STRIKE 

AFFIRMATIVE DEFENSES

Case 2:18-cv-00621-DGC Document 62 Filed 10/02/19 Page 1 of 3
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COME NOW Plaintiffs, by and through counsel of record, with a motion to strike 

Defendant’s affirmative defenses as untimely (Doc. 61 at ¶¶ 58-60) or previously disposed of 

(id. at ¶ 57).

SUMMARY

Through new counsel, Defendant raised an issue of standing before July 29, 2019. As a 

result, the Court permitted Plaintiffs to file an amended complaint adding the “real parties in 

interest.” Plaintiffs did so. In its answer, Defendant raises affirmative defenses which it did 

not previously raise, and which were not the subject of discovery. The Court should strike 

the affirmative defenses because the Court has previously ruled that new discovery–outside of 

the standing issue–will not be permitted. To permit the new affirmative defenses would allow 

the City a trial by ambush.

ARGUMENT

Motions to strike are governed by FRCP 12(f). It states: “The court may strike from a 

pleading an insufficient defense . . . 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.” Id.

Defendant raises four insufficient defenses in its answer which should be stricken: (1) 

failure to state facts upon which relief can be granted (2) unclean hands; (3) estoppel; and (4) 

waiver. (Doc. 61 at ¶¶ 57-60).

The primary thrust of this motion is to strike the affirmative defenses of unclean hands, 

estoppel, and waiver. These defenses were not raised in the original answer. Compare Doc. 

7 at pp. 6-7. Because they were not raised in the original answer, Plaintiffs had no opportunity 

to conduct discovery on them.

The Court previously addressed discovery at the July 29 hearing. There and then, the 

Court reopened discovery, but only on “the issue of subject matter jurisdiction.” Doc. 55. 

These three affirmative defenses do not sound in subject matter jurisdiction. Thus, these three 

issues have lied outside the scope of discovery throughout this whole case. Even if they 

weren’t, the deadline for discovery eclipsed one week after the filing of the answer. See id. 

Case 2:18-cv-00621-DGC Document 62 Filed 10/02/19 Page 2 of 3
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(discovery “shall be completed by 9/27/2019”) (emphasis in original). Therefore, these three 

affirmative defenses should be stricken.

Defendant’s last affirmative defense which should be stricken is a claim that Plaintiffs 

failed to state facts upon which relief can be granted. The claims in the amended answer

survived Defendant’s motion to dismiss for failure to state a claim. (Doc. 17). The Court also 

denied Defendant’s motion for summary judgment. (Doc. 43). The Court’s prior rulings 

dispose of this affirmative defense.

WHEREFORE Plaintiffs pray this Court enter an order striking the affirmative defenses at 

¶¶ 57-60 of Defendant’s answer to Plaintiffs’ first amended complaint.

Respectfully submitted on October 2, 2019,

On behalf of Plaintiffs

By /s/ Stuart P. de Haan and /s/ Matthew A. Kezhaya

Stuart P. de Haan, 

AZ Bar No. 026664

Matthew A. Kezhaya, 

AR Bar No. 2014161 (pro hac vice)

Attorney for Plaintiffs Attorney for Plaintiffs

de Haan Law Firm, PLLC

101 E Pennington Avenue, Suite 201

Tucson, Arizona 85701

1202 NE McClain Rd

Bentonville AR 72712

Phone (520) 358-4089 (479) 431-6112

Fax (520) 628-4275 (479) 282-2892

Email stu.dehaan@gmail.com matt@kezhaya.law

CERTIFICATE OF SERVICE

I certify that on October 2, 2019 I electronically transmitted this document to the Clerk’s 

Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to 

the appropriate CM/ECF registrants. 

/s/ Stuart de Haan

Case 2:18-cv-00621-DGC Document 62 Filed 10/02/19 Page 3 of 3