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Firm E-Mail for Official Court Documents 

courtdocs@dickinsonwright.com

Scot L. Claus (#014999) 

sclaus@dickinsonwright.com

Vail C. Cloar (#032011) 

vcloar@dickinsonwright.com

Holly M. Zoe (#033333) 

hzoe@dickinsonwright.com

DICKINSON WRIGHT PLLC 

1850 North Central Avenue, Suite 1400 

Phoenix, AZ 85004-4568 

Phone: (602) 285-5000 

Fax: (844) 670-6009 

Attorneys for Defendant City of Scottsdale 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

The Satanic Temple, Inc. et al., 

 Plaintiffs, 

v. 

City of Scottsdale 

 Defendant. 

Case No. CV 18-00621-PHX-DGC 

DEFENDANT CITY OF 

SCOTTSDALE’S RESPONSE TO 

MOTION TO STRIKE AFFIRMATIVE 

DEFENSES 

(Oral Argument Requested) 

 Plaintiffs’ Motion to Strike [Doc. 62] is short on the law, short on the facts, and short of 

anything approaching a proper basis to strike. For more than a year, Plaintiffs failed to reveal the 

real parties in interest in this litigation, and instead hid behind the veil of “The Satanic Temple,” 

without divulging the legal forms of that organization. 

 In response to the Court’s order directing them to identify the real parties in interest [Doc. 

56], Plaintiffs offered four corporate or quasi-corporate entities in their First Amended 

Complaint [Doc. 57] (the “FAC”). Rather than simply name the real parties in interest, and 

modify the allegations to reflect to which Plaintiff each allegation referred, Plaintiffs instead 

took the opportunity to rewrite their Complaint. In doing so, Plaintiffs added a host of factual 

and legal assertions that were absent from their initial Complaint [Doc. 1]. Defendant the City of 

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Scottsdale (the “City”) answered that Complaint, and preserved all necessary defenses as 

required by the Federal Rules of Civil Procedure that may be implicated by those new factual 

allegations in its Answer to the FAC [Doc. 61]. 

 Although the City included its affirmative defenses in its original answer, and although 

the City was answering a complaint with new and additional allegations, Plaintiffs have now 

requested that the Court strike four of the City’s affirmative defenses asserting that they were not 

properly reserved or, quizzically, already ruled on and therefore improper. Plaintiffs’ request 

should be denied for two independent reasons. First, the City’s initial Answer properly preserved 

its affirmatives defenses because the City specifically reserved all defenses listed in Rule 8(c) of 

the Federal Rules of Civil Procedure. Second, the City cannot waive a Rule 12(b)(6) defense. 

 This Response is supported by the following Memorandum of Points and Authorities. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. Factual Background 

A. The City’s Answer to the Complaint. 

 After Plaintiffs commenced this action, the City and the individual Defendants filed 

their Answer [Doc. 7] (the “Original Answer”). The Original Answer specifically set forth a 

number of affirmative defenses, including all defenses “listed in Rule 8(c) of the [Federal] 

Rules of Civil Procedure.1

 [Id. at 7 ¶ e.] Leaving no doubt as to its preservation of the defense 

of “waiver,” the City specifically indicated that it was preserving all defenses predicated upon 

Plaintiffs’ delay in initiating this litigation, “including laches and waiver.” [Id. at ¶ d.] 

B. The City’s Answer to the FAC. 

 Plaintiffs have litigated this case from day one based on the fictitious assertion that 

something called “The Satanic Temple” existed as of February 8, 2016 in a form that could both 

 

1

 The Original Answer references the Arizona Rules of Civil Procedure, which is a scrivener’s 

error. The Arizona Rules of Civil Procedure list affirmative defenses in Rule 8(d), not 8(c). 

Ariz. R. Civ. P. 8(d). 

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be harmed and could bring suit before this Court. That is not true. [Docs. 48, 53.] Instead, “The 

Satanic Temple” is a loose constellation of Massachusetts and Arizona entities, the majority of 

which did not exist as of the date of the alleged injury. [Doc. 63 at 5–6.] Plaintiffs did not 

disclose that reality, did not file a corporate disclosure statement, and did not provide 

information that is critical to the City’s defense, such as who or what was actually seeking to 

enjoin the City’s longstanding legislative prayer practice. 

 Once the City objected to the Plaintiffs’ attempts to hide the ball, Plaintiffs filed their 

FAC naming four entities that apparently claim some stake in this litigation: United Federation 

of Churches, LLC (“UFC”); The Satanic Temple, Inc. (“TST, Inc.”); Adversarial Truth, LLC 

(“Adversarial Truth”); and an unincorporated association (“the Unincorporated Association”). 

[FAC at ¶¶ 7–14.] The FAC also added a host of allegations that were not pled previously, 

including: (1) the number of religious leaders who gave an invocation and their faiths; (2) where 

the religious institution giving the invocation resided; (3) the circumstances of the “denial.” [Id.

at ¶¶ 20–25, 37.] 

 In response to the FAC, the City filed an Answer [Doc. 61] (the “City Answer”), which 

preserved those defenses implicated by the new facts asserted in the FAC, and specifically 

articulated certain defenses that had originally been preserved in the Original Answer. [Doc. 

61 ¶¶ 55–60.] 

II. The motion to strike is meritless. 

A. The City preserved all available affirmative defenses. 

 “Motions to strike are generally disfavored and rarely granted.” Lowe v. Maxwell & 

Morgan PC, 322 F.R.D. 393, 398 (D. Ariz. 2017). The Motion asks that the Court strike the 

defenses of unclean hands, estoppel, and waiver, because “[t]hese defenses were not raised in 

the original answer.” [Doc. 62 at 2.] Plaintiffs complain that, because these defenses were 

“not raised” they had “no opportunity to conduct discovery on them.” [Id.] Nonsense. 

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 Plaintiffs’ arguments are flawed for three fundamental reasons. First, as explained 

above, the City specifically preserved every available affirmative defense. [Doc. 7 at 7 ¶ e.] 

Indeed, the City preserved the defense of “waiver,” both by reference to Rule 8(c) and

explicitly in its Original Answer. [Id. at ¶¶ d–e.] At best, Plaintiffs have failed to read the 

City’s pleadings carefully prior to filing their Motion. Their histrionics regarding trial by 

ambush ring hollow. 

 Second, Plaintiffs cite no authority for the proposition that affirmative defenses cannot 

be raised for the first time in response to an amended complaint that raises additional factual 

allegations, and the undersigned are aware of none. Indeed, even if the City had not preserved 

its affirmative defenses, it is of no moment to the Court’s analysis. A party must preserve the 

defenses enumerated in Rule 8(c) “in responding to a pleading.” Fed. R. Civ. P. 8(c). An 

amended complaint supersedes the original, and renders the original pleading a legal nullity. 

E.g., Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Stated 

differently, “the original pleading no longer performs any function.” Id. (quoting Ferdik v. 

Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992)). 

 In light of the non-existent legal status of Plaintiffs’ original Complaint, whether the 

City initially preserved the defenses listed in the City Answer is legally irrelevant. See id.

Plaintiffs have filed a new pleading, and the City has raised what it believes to be applicable 

affirmative defenses “in responding to a pleading,” indeed, the only operative pleading in the 

case. Rule 8 requires nothing more. See Fed. R. Civ. P. 8(c). 

 Finally, Plaintiffs’ complaints regarding the lack of discovery on the affirmative 

defenses makes little sense. The City’s affirmative defenses—unclean hands, waiver, and 

estoppel—are all predicated upon Plaintiffs’ actions, not the City’s. Plaintiffs are also 

unquestionably aware of their own conduct that could work a waiver or estoppel. For 

example, despite now alleging that they have a membership presence in Scottsdale [FAC 

¶ 14], Plaintiffs never raised any purported ties to Scottsdale with the City at any point 

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between July 2016 and the commencement of this litigation, and have either waived or should 

be estopped from claiming any sort of pretextual application of City policy. Plaintiffs are 

aware of their own conduct that comprises unclean hands: for example, their fraudulent 

representations to the State of Massachusetts regarding their corporate formation documents. 

The City had no knowledge of the bases for those affirmative defenses until the filing of the 

FAC, because the City had no idea who the real parties in interest were. Plaintiffs have only 

themselves and their reticence to divulge their true identity to blame for any previously 

unknown defense. 

B. The City may unquestionably assert that Plaintiffs have failed 

to state a claim upon which relief can be granted. 

 Plaintiffs’ argument that the City’s defense of failure to state a claim should be stricken 

is frivolous under well-settled law. Plaintiffs’ fallacious position is that because their claims 

survived a Rule 12(b)(6) motion to dismiss (which necessarily took all allegations of the 

complaint as true) and a motion for summary judgment (which may be granted only if there is 

no contested issue of material fact) their claims necessarily state a claim. That is clearly 

wrong. 

 An affirmative defense of failure to state a claim upon which relief can be granted may 

be raised at any point before the conclusion of trial. Fed. R. Civ. P. 12(h); Arbaugh v. Y&H 

Corp., 546 U.S. 500, 507, (2006); Schmitt v. Marto, CV-18-02579, 2019 WL 1059992, at *1 

(D. Ariz. March 6, 2019). Neither the denial of a motion to dismiss or a motion for summary 

judgment is a final judgment on the merits of a claim. See, e.g., Covington v. Sisters of Third 

Order of St. Dominic of Hanford, Cal., 61 F.3d 909 (9th Cir. 1995) (Table Op.) (“Denial of 

summary judgment is not a decision of the merits; it is simply a decision that there is a 

material factual issue to be tried.” (quoting 10 Charles A. Wright, Arthur R. Miller & Mary K. 

Kane, Federal Practice and Procedure § 2712 (1969))); Credit Suisse v. U.S. Dist. Ct. for 

Cent. Dist. of Cal., 130 F.3d 1342, 1345–46 (9th Cir. 1997) (explaining that denial of a 

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motion to dismiss is not a “final decision”). Thus, the rejection of a 12(b)(6) argument at one 

stage of litigation has no effect on the ability to raise the same or similar arguments later, so 

long as those stages have different evidentiary standards. See, e.g., Peck v. Hinchey, CV-12-

01371-PHX-JAT, 2017 WL 2929464, at 5 n.5 (D. Ariz. July 10, 2017). 

 Plaintiffs’ assertion that the Court’s ruling “dispose of” the affirmative defense that the 

FAC fails to state a claim upon which relief can be granted is baseless. The City is free to 

move for dismissal under Rule 12(b)(6) at any point to the conclusion of trial, and the 

differing evidentiary standards are fatal to Plaintiffs’ argument.2

 

III. Conclusion 

 Charitably, Plaintiffs’ Motion is nothing more than an error of fact and law on the part 

of Plaintiffs. There is no legitimate basis to strike the Town’s defenses, and the Motion should 

be denied. 

 RESPECTFULLY SUBMITTED this 16th day of October, 2019. 

 DICKINSON WRIGHT PLLC 

 By: /s/ Vail C. Cloar 

Scot L. Claus 

Vail C. Cloar 

Holly M. Zoe 

1850 North Central Avenue, Suite 1400 

Phoenix, Arizona 85004-4568 

Attorneys for Defendant City of Scottsdale 

 

2

 Indeed, even if the Court had made some otherwise conclusive finding as to the City’s 

12(b)(6) defense (and it did not), that finding was in the context of the original Complaint, not 

the FAC. Because the Plaintiffs have filed and served their FAC, the Court’s rulings regarding 

that pleading are moot. Williams v. Conn. Gen. Life Ins. Co., CIV-06-2747, 2008 WL 

4183372, at *2 (D. Ariz. Sep. 10, 2008) (explaining that after the filing and service of an 

amended complaint “any ruling pertaining to the original complaint would be a nullity”). 

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CERTIFICATE OF SERVICE 

 I hereby certify that on October 16, 2019, I electronically transmitted the attached 

document to the Clerk of the Court using the CM/ECF system, and which will be sent 

electronically to all registered participants as identified on the Notice of Electronic Filing, and 

paper copies will be sent to those indicated as non-registered participants. 

 By: /s/ Sheila Rath 

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