1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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. et al.,

Plaintiffs,

v.

City of Scottsdale,

Defendant

 Case No. 18-cv-00621-DGC

Plaintiffs’ response to motion to dismiss

INTRODUCTION AND SUMMARY

After the time for discovery has passed, the City filed an amended answer which asserts 

new affirmative defenses. Compare Doc. 7 at pp. 6-7 with Doc. 61 ¶¶ 58-60. Plaintiffs moved 

to strike the new affirmative defenses because it is a transparent effort to backdoor new issues 

into the case. See Doc. 62. Defendant responds that it “specifically preserved every available 

affirmative defense.” Doc. 64 at p. 4 (emphasis in original). 

The Court should strike the new affirmative defenses because it is elementary civil 

procedure that an affirmative defense may be stricken if it does not give fair notice of the 

defense. The new affirmative defenses, raised after the time for discovery and less than three 

months before the trial, cannot be said to give fair notice of the defenses. The Court should 

strike the new affirmative defenses.

ARGUMENT

It is elementary civil procedure that an affirmative defense may be stricken if it does not 

give fair notice of the defense. E.g. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 

Case 2:18-cv-00621-DGC Document 66 Filed 10/24/19 Page 1 of 5
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1979) ("The key to determining the sufficiency of pleading an affirmative defense is whether 

it gives plaintiff fair notice of the defense.”) 

Further, an affirmative defense may be stricken as legally insufficient only if it clearly lacks 

merit under any set of facts the defendant might allege. Ventures Edge Legal PLLC v. 

GoDaddy.com LLC, No. CV-15-02291-PHX-GMS, 2017 U.S. Dist. LEXIS 41399, at *2 (D. 

Ariz. Mar. 22, 2017).

Plaintiffs have moved to strike four affirmative defenses: (1) failure to state a claim upon 

which relief can be granted; (2) unclean hands; (3) estoppel; and (4) waiver. We discuss each 

in turn.

1: Defendant’s defense of a “failure to state a claim upon which relief 

can be granted” should be stricken because the Court has repeatedly 

rejected the argument.

The first affirmative defense sought to be stricken is a claim that Plaintiffs have failed to 

state a claim upon which relief can be granted. See Doc. 61 at ¶ 57. Defendant’s response 

appears to argue that the Court had not made a conclusive finding as to the City’s Rule 12(b)(6) 

defense. See Doc. 64 at fn. 2. This argument is belied by the Court’s order denying the City’s 

motion under Rule 12(b)(6). See Doc. 17. (“The motion is denied as to count 1 establishment 

clause claim and count 2 equal protection claim.”)

The Court will find authority to support granting Plaintiffs’ motion and denying Plaintiffs’ 

motion. Compare, e.g., Ventures, above, at p. 6 (“Nevertheless, although the Court denied 

the Motion to Dismiss in its entirely, (Doc. 48), it is appropriate to allow this defense to be 

pleaded in the Answer.”) and Cook v. Mt. Am. Fed. Credit Union, No. 2:18-cv-1548-HRH, 

2018 U.S. Dist. LEXIS 162234, at *4 (D. Ariz. Sep. 20, 2018) (“The court having already 

rejected Mountain America's Rule 12(b)(6) contention that plaintiff's claim was implausible, 

reassertion of Mountain America's first affirmative defense in its answer to plaintiff's first 

amended complaint is superfluous and is stricken.”)

The conflicting authority is answered by the plain text of the rule: the Court “may” (not 

“shall”) strike pleadings. FRCP 12(f). This matter lies in the discretion of the Court.

Case 2:18-cv-00621-DGC Document 66 Filed 10/24/19 Page 2 of 5
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2: Defendant’s defense of unclean hands and estoppel are new issues.

The next two affirmative defenses sought to be stricken are unclean hands and estoppel. 

See Doc. 61 at ¶¶ 58 (unclean hands) and 59 (estoppel); compare Doc. 7 at pp. 6-7. Defendant 

rests on argument that the original answer raised “every available affirmative defense.” Doc. 64 at 

p. 4. This is a transparent effort to backdoor new issues into the litigation without the 

opportunity for discovery. The City asks for Court permission for a trial by ambush. 

The Court should decline the invitation because asserting “all the defenses” does not give 

fair notice to Plaintiffs about unclean hands or estoppel. See Cook, above, at pp. 4-5 (“The 

balance of Mountain America's sixth affirmative defense calls attention to the fact that 

discovery may develop a basis for some presently unasserted affirmative defense. Certainly 

that is possible. . . . Mountain America’s sixth affirmative defense is stricken for lack of fair 

notice.”)

As in Cook, the City could have amended its answer to specifically assert the defenses of 

unclean hands or estoppel in compliance with the scheduling order, such that the parties could 

have exchanged discovery on the issues. The City declined to pursue that strategy and instead 

opted for surprise litigation. The Court should strike the new defenses.

Not only are the defenses untimely, they wholly lack merit. The City argues that unclean 

hands is cognizable “for example” because of what the City deems to be “fraudulent 

representations top the State of Massachusetts regarding their corporate formation 

documents.” Doc. 4 at p. 5. That isn’t unclean hands. 

Unclean hands is based on the maxim that “he who comes into equity must come with 

clean hands.” Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814, 

65 S. Ct. 993, 997 (1945). The defense requires that he act fairly and without fraud or deceit 

“as to the controversy in issue.” Id. at 814-15. The City cannot draw any line between 

corporate filing in Massachusetts and the City’s discrimination against Michelle for her 

religious beliefs.

Case 2:18-cv-00621-DGC Document 66 Filed 10/24/19 Page 3 of 5
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Likewise, as to estoppel, the City faults Plaintiffs with never “raising any purported ties to 

Scottsdale with the City at any point between July 2016 and the commencement of the

litigation.” Doc. 64 at pp. 4-5. Again, this isn’t estoppel.

The three elements of equitable estoppel are traditionally stated as: (1) the party to be 

estopped commits acts inconsistent with a position it later adopts; (2) reliance by the other 

party; and (3) injury to the latter resulting from the former's repudiation of its prior conduct.

The City has no hope of meeting any of the elements. None of the plaintiffs have ever 

claimed it did not have the amorphous “substantial connection” to Scottsdale because the City 

never asked. Not that it could, without incurring liability, because the City never asked any 

other prospective participants in the all-comer policy.

To the extent the City faults the plaintiffs’ failure to respond with all the reasons they do 

have a “substantial connection,” there was no right of appeal. Even if there had been, any 

assertion on plaintiffs’ part would be used by the City to craft a definition that excludes 

plaintiffs–and only plaintiffs–from the definition. Silence was the only way to show that the 

“policy” was always a pretext. The city manager was forced to testify to the truth: “substantial 

connection” has no definite factors, because any factors we came up with would never have 

been good enough.

As for “injury,” there is none. The City excluded plaintiffs in derogation of the 

constitutional rights to be free from religious discrimination and disparate treatment. The 

cause thus accrued. Any silence after the fact cannot be used to preclude relief.

3: Defendant’s defense of waiver is legally insufficient because there 

is neither allegation nor argument of an intentional relinquishment.

The last affirmative defense sought to be stricken is waiver. See Doc. 61 at ¶ 60. On a 

closer review of the initial answer, the word “waiver” is mentioned. See Doc. 7 at p. 7. The 

problem is that it is mentioned under defensive “timeliness” doctrines. Id. Waiver is not a 

defense on the issue of timeliness, it is “an intentional relinquishment of a known right.” 

Cook, above (citing Stanolind Oil & Gas Co. v. Guertzgen, 100 F.2d 299, 302 (9th Cir. 1938)).

Case 2:18-cv-00621-DGC Document 66 Filed 10/24/19 Page 4 of 5
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The City doesn’t separately discuss waiver from estoppel. The City makes no effort to 

even allege an intentional relinquishment. There is no settlement agreement and there is no 

statement or conduct that amounts to dropping the claim. Had the City responded with an 

argument around timeliness, we would have withdrawn the motion to strike the defense of as 

a misnomer for laches. Instead, the City argued estoppel by another name. This is kitchen 

sink litigation and the affirmative defense should be stricken.

Respectfully submitted on October 24, 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 24, 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 66 Filed 10/24/19 Page 5 of 5