MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Lead Plaintiffs Opposed Motion to Strike Certain of the D.E. Shaw Defendants’ Affirmative Defenses Pursuant to Rule 12(f), filed August 9, 2010 (Doc. 221) (“First Motion”); and (ii) the Lead Plaintiffs Opposed Motion to Strike Certain of the Individual Affirmative Defenses Pursuant to Rule 12(f), filed August 10, 2010 (Doc. 223) (“Second Motion”). The Court held a hearing on October 12, 2010. The primary issues are: (i) whether, pursuant to rule 12(f) of the Federal Rules of Civil Procedure, the Court should strike affirmative defenses of the DESCO Defendants
FACTUAL BACKGROUND
Lane brings this shareholder class action on behalf of himself and the holders of common stock of Westland Development Co. (“Westland”), against Westland, certain of its senior officers and directors, its merger partner, SunCal Acquisition Crop. (“SunCal”), and the DESCO Defendants, who Lane contends were involved in planning, executing, and consummating the SunCal Merger. See TAC ¶ 1, at 2. Lane alleges that, on or about September 20, 2006, the Defendants mailed to Westland shareholders a Proxy Statement that misrepresented and/or omitted material facts, and that this Proxy Statement was used to obtain shareholder approval of the sale of Westland to SunCal. See TAC ¶¶ 1, 3, at 2; SEC Schedule 14A Definitive Proxy Statement for Westland Development Co., Inc. at 6 (issued September 20, 2006), filed June 17, 2010 (Doc. 206-1) (“Proxy Statement”). The Court has summarized the facts of this case and the history of the merger previously, and will not recite them again
PROCEDURAL BACKGROUND
Lane filed his initial Complaint on November 3, 2006, in which he asserted class-action claims under § 14(a) and § 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a through 78oo. See Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9, filed November 3, 2006 (Doc. 1). On September 17, 2007, Lane filed his First Amended Complaint. See Amended Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9, filed September 17, 2007 (Doc. 50). On December 3, 2007, the Defendants filed motions to dismiss the Amended Complaint. See Motion to Dismiss and Joinder in Director Defendants’ Motion to Dismiss, filed December 3, 2007 (Doc. 52); Motion to Dismiss, filed December 3, 2007 (Doc. 53). The Court granted in part and denied in part those motions on September 15, 2008. See Order, filed September 15, 2008 (Doc. 81); Memorandum Opinion, filed September 24, 2008 (Doc. 83).
On December 1, 2008, Lane filed a motion to amend his First Amended Complaint. See Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, filed December 1, 2008 (Doc. 105). The Court granted that motion on February 5, 2010. See Order Granting Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, filed February 5, 2009 (Doc. 144). Pursuant to the order granting the motion, Lane filed his Second Amended Complaint. See Second Amended Complaint for Violations of §§ 14(a) and 20(a) of the Securities and Exchange Act of 1934 and SEC Rule 14a-9, filed February 9, 2009 (Doc. 145)(“SAC”).
On July 15, 2009, Lane filed a motion to amend his SAC. See Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Fedei*al Rules of Civil Procedure (Doc. 176) (“Motion to Amend”). On March 31, 2010, the Court issued an Order granting Lane’s Motion to Amend. See Doe. 199. On June 17, 2010 Lane filed his TAC.
On July 6, 2010, the Individual Defendants filed their Director Defendants’ Answer to Third Amended Complaint for Violations of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9. See Doc. 212 (“Individual Defendants’ TA”). The Individual Defendants’ TA raised eighteen affirmative defenses. See Individual Defendants’ TA at 13-17. The Individual Defendants declined to respond to a number of allegations on grounds that: (i) allegations in Lane’s TAC contain “legal conclusions to which no response is required,” Individual Defendants’ TA ¶¶ 8-9, 38, 47, 49, 52, 55, 57, 60, at 3, 8-12; (ii) the Proxy Statement “speaks for itself,” Individual Defendants’ TA ¶¶ 3-4, 6, 12-18, 20-21, 33, 36, 43-44, 47, 49, 52, 55-58, at 1-5, 7-12; and (iii) the allegations were “dismissed by the Court, thus no response is needed,” Individual Defendants’ TA ¶¶ 39-42, 46, 50-51, at 8-11.
On July 15, 2010, the DESCO Defendants filed their Answer of D.E. Shaw Defendants to Third Amended Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9. See Doc. 214 (“DESCO Defendants’ TA”). The DESCO Defendants’ TA raised thirty-one “affirmative and additional defenses.” DESCO Defendants’ TA at 22-30. The DESCO Defendants declined to respond to a number allegations on grounds that: (i) the allegations in Lane’s TAC contain “legal conclusions, which require no response,” DES-CO Defendants’ TA ¶¶ 9, 22-31, 38, 40-42, 56, 60, at 4, 7-9, 11-12, 19; and (ii) the Proxy Statement “speaks for itself,” DESCO Defendants’ TA ¶¶ 3-4, 12-21(a), 21(b)(i), 37, 39, 40(b), 42-52, 55-58, at 2, 4-6, 10-20. The DESCO Defendants also pled a general denial. See DESCO Defendants’ TA at 1 (“DES-CO Defendants generally deny all allegations in the Third Amended Complaint, except those specifically admitted below.”).
On August 9, 2010, Lane filed his First Motion and his Memorandum of Law in Sup-
The Defendants oppose Lane’s Motions. On August 26, 2010, the DESCO Defendants filed DESCO Defendants’ Response to Lead Plaintiffs Rule 12(f) Motion to Strike Certain Affirmative Defenses. See Doc. 235 (“DES-CO Defendants’ Response”). The DESCO Defendants argue that their affirmative defenses are sufficient, because affirmative defenses need not provide factual support. They contend that, because defendants have only twenty-one days to respond to a complaint, courts should not hold answers to the same standards as complaints, for which a plaintiff is able to leisurely develop factual support within the statute of limitations— particularly as defendants risk waiving any affirmative defenses not pled in the answer. Additionally, the DESCO Defendants assert that the Court should not strike their defenses, because those defenses relate to the subject matter of this action and their inclusion in the DESCO Defendants’ TA does not prejudice Lane. They further assert that their responses adequately deny Lane’s allegations and otherwise conform to rule 8(b)’s pleading standards. The DESCO Defendants contend, therefore, that the Court should deny Lane’s First Motion.
On August 27, 2010, the Individual Defendants filed Defendants’ Opposition to Lead Plaintiffs Motion to Strike Certain of the Individual Defendants’ Affirmative Defenses Pursuant to Rule 12(f). See Doc. 236 (“Individual Defendants’ Response”). The Individual Defendants contend that Lane failed to demonstrate that any of the Individual Defendants’ responses or affirmative defenses are insufficient as a matter of law or cause him any prejudice, and thus has failed to overcome the courts’ strong disinclination to grant such motions. The Individual Defendants further contend that granting Lane’s requested remedy would have essentially no practical effect. Accordingly, the Individual Defendants request that the Court deny Lane’s Second Motion or allow the Individual Defendants to file an amended answer.
On September 13, 2010, Lane filed his Reply Memorandum of Law in Further Support of Lead Plaintiffs Opposed Motion to
LAW REGARDING MOTIONS TO STRIKE
Rule 12(f) of the Federal Rules of Civil Procedures provides:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) 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.
Fed.R.Civ.P. 12(f). Professors Charles Alan Wright and Arthur Miller have recognized, however, that such motions are not favored and, generally, should be denied.
The district court possesses considerable discretion in disposing of a Rule 12(f) motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because federal judges have made it clear, in numerous opinions they have rendered in many substantive contexts, that Rule 12(f) motions to strike on any of these grounds are not favored, often being considered purely cosmetic or “time wasters,” there appears to be general judicial agreement, as reflected in the extensive ease law on the subject, that they should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy____ 5C C. Wright & A. Miller, Fed. Prac. & Proc. Civ., § 1382 (3d. ed.2004) (footnotes omitted). See Burget v. Capital W. Sec., Inc., No. CIV-09-1015-M,
Professors Wright and Miller have also commented on what constitutes “immaterial” matter in the context of a motion to strike. “ ‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material.” 5C C. Wright & A. Miller, supra, § 1382 (footnotes omitted). Moreover, “[o]nly material included in a ‘pleading’ may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions, briefs,
ANALYSIS
Lane contends that, because the Defendants’ affirmative defenses are devoid of factual allegations and assert improper defenses, the Court should strike some of their affirmative defenses in part and require the Defendants to amend their answers. The Defendants respond that rule 8 does not require them to provide factual support for their affirmative defenses and that their answers adequately respond to Lane’s TAC. The Court declines to extend the heightened pleading standard the Supreme Court established in Bell Atlantic v. Twombly and Ashcroft v. Iqbal to affirmative defenses pled in answers, because the text of the rules, and the functional demands of claims and defenses, militate against requiring factual specificity in affirmative defenses. The Court finds, however, that parts of the Defendants’ answers are deficient under rule 8, because they mislabel defenses and do not properly respond to Lane’s allegations, and the Court orders the Defendants to amend their answers.
I. THE COURT DECLINES TO APPLY THE PLEADING STANDARD UNDER BELL ATLANTIC V. TWOMBLY AND ASHCROFT V. IQBAL TO AFFIRMATIVE DEFENSES.
Lane contends that the Court should strike some of the Defendants’ affirmative defenses, because they do not contain factual allegations. See First Memorandum at 6 (“D.E. Shaw Defendants’ affirmative defenses — specifically, affirmative defenses 2-9, 11, 13-16, 18, 26-31 — should either be amended to state sufficient facts to put plaintiff on notice of how the defense applies or stricken entirely.”);
Lane bases his argument in part on the contention that the Court should apply the heightened pleading standard that the Supreme Court established in Bell Atlantic v. Twombly and Ashcroft v. Iqbal to the Defendants’ affirmative defenses. Lane asserts that, while no Courts of Appeals have addressed this question, a majority of district courts that have addressed the question extended the heightened pleading standard to affirmative defenses,
The Defendants respond that the Court should not extend the Bell Atlantic v. Twom-bly and Ashcroft v. Iqbal pleading standard to affirmative defenses, or require them to allege facts in support of their affirmative defenses. The Defendants contend that it is reasonable and appropriate for courts to impose different requirements on plaintiffs and defendants, because plaintiffs can prepare their complaints over years, limited only by the statute of limitations, whereas defendants have only twenty-one days to file their answers. See Fed.R.Civ.P. 12(a)(l)(A)(i)(“A defendant must serve an answer ... within 21 days after being served with the summons and complaint....”). Given the time re
The Court declines to extend the heightened pleading standard the Supreme Court established in Bell Atlantic v. Twombly and Ashcroft v. Iqbal to affirmative defenses.
In Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the Supreme Court moved away from the notice pleading regime that had governed its interpretation of rule 8(a) for fifty years. The court expressly “retired” the language from Conley v. Gibson, that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
P. Julian, Comment, Charles E. Clark and Simple Pleading: Against a “Formalism of Generality”, 104 Nw. U.L.Rev. 1179, 1180 (2010) (quoting Conley v. Gibson,
Neither the text of the rules nor the Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal require the Court to extend the pleading standard from those cases to affirmative defenses. Moreover, the Court concludes that pragmatic concerns weigh against requiring defendants to plead factual allegations supporting affirmative defenses. The Court thus denies the parts of Lane’s Motions that are predicated on requiring factual specificity, particularly as motions to strike are disfavored. See Lane v. Page,
A. THE TEXT OF RULE 8 DOES NOT REQUIRE DEFENDANTS TO PROVIDE THE FACTUAL BASIS OF AFFIRMATIVE DEFENSES.
Courts that have addressed whether to apply the heightened pleading standard under Bell Atlantic v. Twombly and Ashcroft v. Iqbal to affirmative defenses have divided on how to interpret rule 8. Courts that have extended Bell Atlantic v. Twombly and Ashcroft v. Iqbal to affirmative defenses have generally based their conclusions on pragmatic consideration rather than textual dictates. For example, in the thoughtfully reasoned and oft-cited Palmer v. Oakland Farms, Inc., the Honorable James G. Welsh, United States Magistrate Judge for the United States District Court of the Western District of Virginia, found extending Bell Atlantic v. Twombly and Ashcroft v. Iqbal was “in no way inconsistent with” the rules:
[B]y its terms Rule 8(b) makes no mention of facts, only a “short and plain” statement of defenses, and by its terms Rule 8(c) similarly requires no factual showing, only that affirmative defenses be “set forth affirmatively.” Compare Rule 8(a)(2) (a pleading that states a claim for relief must contain ... “a short and plain statement of the claim showing that the pleader is entitled to relief’) ivith Rule 8(b)(1) (“[i]n responding to a pleading, a party must ... state in short and plain terms its defenses to each claim asserted against it”)____ [T]he considerations of fairness, common sense and litigation efficiency underlying Twombly and Iqbal strongly suggest that the same heightened pleading standard should also apply to affirmative defenses.
Courts that have refused to extend the pleading standard to affirmative defenses, on the other hand, have generally found more support in the text of the rules, reading rule 8(c) as providing distinct requirements for affirmative defenses from the requirements under rule 8(a) and (b). In First National Insurance Company of America v. Camps Services, Ltd., No. 08-cv-12805,
First National is correct that Twombley [sic] raised the requirements for a well-pled complaint under Fed.R.Civ.P. 8(a)’s “short and plain statement” requirement. Similar, though not identical, language appears in Rule 8(b)’s requirement that a defendant’s answer “state in short and plain terms its defenses to each claim asserted against it.” Fed.R.Civ.P. 8(b)(1)(A). No such language, however, appears within Rule 8(c), the applicable rule for affirmative defenses. As such, Twombley’s [sic] analysis of the “short and plain statement” requirement of Rule 8(a) is inapplicable to this motion under Rule 8(e).
First Nat’l Ins. Co. of Am. v. Camps Servs.,
The pleading of affirmative defenses is governed by Rule 8(c). That rule requires only that a party “affirmatively state any avoidance or affirmative defense.” Fed. R.Civ.P. 8(c)(1) (emphasis added). It does not contain the language from Rule 8(a) requiring a “short and plain statement of the claim showing the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2) (emphasis added). Nor does it include the “short and plain terms” language found in Rule 8(b). Fed.R.Civ.P. 8(b)(1)(A); see McLemore v. Regions Bank, Nos. 3:08-cv-0021, 3:08-cv-1003,2010 WL 1010092 , at *12 (M.D.Tenn. Mar. 18, 2010) (“Unlike subsections (a) and (b), subsection (c) does not include any language requiring the party to state anything in ‘short and plain’ terms.”). The Court is of the view that the pleading standards enunciated in Twombly and Ashcroft v. Iqbal have no application to affirmative defenses pled under Rule 8(c). See McLemore,2010 WL 1010092 , at *13; First Nat’l Ins. Co. of Am. v. Camps Servs., Ltd., No. 08-cv-12805,2009 WL 22861 , at *2 (E.D.Mich. Jan. 5, 2009) (Twombly’s “analysis of the ‘short and plain statement’ requirement of Rule 8(a) is inapplicable to this motion under Rule 8(c)”); Romantine v. CH2M Hill Eng’rs, Inc., No. 09-973,2009 WL 3417469 , at *1 (W.D.Pa. Oct. 23, 2009) (“This court does not believe that Twombly is appropriately applied to either affirmative defenses under [Rule] 8(e), or general defenses under Rule 8(b), and declines to so extend the Supreme Court ruling[.]”); Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB,2010 WL 865380 , at *2 (D.Colo. Mar. 8, 2010) (declining to apply Twombly and Iqbal to affirmative defenses in part because a defendant is given only 20 days to respond to a complaint and assert its affirmative defenses).
Ameristar Fence Prod., Inc. v. Phx. Fence Co., No. CV10-299-PHX-DGC,
The Court agrees with the latter cases that rule 8(c), which provides the requirements for pleading affirmative defenses, does not require factual support. See Fed.R.Civ.P. 8(c)(1) (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense____”). The Court does not, however, adopt their reasoning wholesale. Specifically, the Court does not read 8(b) to exclude affirmative defenses, but reasons that rule 8(b)’s text does not include rule 8(a)’s language that demands factual particularity.
In determining the proper interpretation of a statute, this court will look first to the plain language of a statute and interpret it by its ordinary, common meaning. If the statutory terms are unambiguous, our review generally ends and the statute is construed according to the plain meaning of its words.
Holster v. Gatco, Inc., — U.S. -,
Although the Court reads rule 8(b) to apply to affirmative defenses, this reading does not demand that defendants support their affirmative defenses with factual allegations. Rule 8(a) provides the pleading requirements for complaints, and the Supreme Court interpreted that section when deciding Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Significantly, the drafters did not use the same text for rule 8(a)(2) and rule 8(b)(1)(A). Rule 8(a)(2) requires plaintiffs to provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” while defendants must “state in short and plain terms its defenses to each claim asserted against it.” Only plaintiffs, and not defendants, are required to “show” that they are “entitled to relief.”
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” Conley v. Gibson,355 U.S. 41 , 47,78 S.Ct. 99 ,2 L.Ed.2d 80 ... (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc.,40 F.3d 247 , 251 (C.A.7 1994), a plaintiffs obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain,478 U.S. 265 , 286,106 S.Ct. 2932 ,92 L.Ed.2d 209 ... (1986) (on a motion to dismiss, courts “are not bound to*594 accept as true a legal conclusion couched as a factual allegation”).
The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.”
Bell Atl. Corp. v. Twombly,
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atl. Corp. v. Twombly, 550 U.S.] at 570 [127 S.Ct. 1955 ]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556 [127 S.Ct. 1955 ]. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557,127 S.Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal,
The forms appended to the rules bolster the Court’s analysis that rule 8(b) does not require defendants to provide factual allegations supporting defenses. Form 30 provides an example of an “Answer Presenting Defenses Under Rule 12(b).” Fed.R.Civ.P. Form 30. The section titled “Failure to State a Claim” states, in its entirety: “4. The complaint fails to state a claim upon which relief can be granted.” Fed.R.Civ.P. Form 30. Failure to state a claim is a defense under rule 12 and therefore falls under rule 8(b)’s requirements. Form 30 provides no factual allegations in support of the defense, and form 30 is sufficient under the rules. See Fed.R.Civ.P. 84 (“The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.”); 12 C. Wright, A. Miller & R. Marcus, Federal Practice & Procedure, § 3162 (2d ed. 2010) (“[I]t is clear that a pleading ... that follows one of the Official Forms cannot be successfully attacked.”) (collecting cases).
Lane asks the Court to read rule 8(b)(1)(A) as stating that a defendant must state in short and plain terms its defenses showing that the pleader is entitled to relief. The Court declines Lane’s invitation. The Court thinks the better construction is that the drafters omitted the requirement that defendants “show” that they are “entitled to relief,” because the pleading requirements for claims are different than the requirements for defenses. See Boumediene v. Bush,
In addition to the rules not compelling defendants to provide factual support for their affirmative defenses, pragmatic considerations militate against such a requirement. The courts that have addressed whether to apply Bell Atlantic v. Twombly and Ashcroft v. Iqbal’s pleading standard to affirmative defenses have divided whether factual support for affirmative defenses promotes pleadings’ purposes. Courts that apply the pleading standard of Bell Atlantic v. Tvoombly and Ashcroft v. Iqbal to affirmative defenses reason that factual information is necessary “to give fam notice to the opposing party that there is some plausible, factual basis for the assertion and not simply to suggest some possibility that it might apply to the case.” Castillo v. Roche Labs. Inc., No. 10-20876-CIV,
Courts that decline to extend Bell Atlantic v. Twombly and Ashcroft v. Iqbal’s pleading standard to affirmative defenses reason that, given the limited time defendants have to file their answers, it is appropriate to impose asymmetric pleading requirements on plaintiffs and defendants. See Holdbrook v. SAIA Motor Freight Line, LLC,
The Court believes that cases refusing to extend the pleading standard have the better argument. The functional differences between a complaint and affirmative defenses militate against extending to affirmative defenses the pleading standard the Supreme Court announced in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. While applying the same standard to plaintiffs and defendants may satisfy our sense of consistency and symmetry, see Palmer v. Oakland Farms, Inc., No. 5:10cv00029,
Asymmetrical requirements are also reasonable in light of the different requirements that plaintiffs and defendants face when submitting complaints and answer. Plaintiffs can prepare their complaints over years, limited only by the statute of limitations, whereas defendants have only twenty-one days to file their answers. See Fed.R.Civ.P. 12(a)(l)(A)(i) (“A defendant must serve an answer ... within 21 days after being served with the summons and complaint.... ”). Whereas a defendant is deemed to admit the allegations in a complaint if he or she does not respond, a plaintiff may largely ignore an answer without formal legal consequence. See Fed.R.Civ.P. 55. Moreover, defendants risk waiving affirmative defenses that are omitted from their answer. See Fed.R.Civ.P. 12(g)(2), (h)(1)(A). Consequently, “counsel often plead vast numbers of affirmative defenses without being sure whether the facts will ultimately support the defenses[;] such pleading is done precisely so that the defenses will be preserved should discovery or further proceedings reveal factual support.” Wanamaker v. Albrecht, No. 95-8061,
Applying Bell Atlantic v. Twombly and Ashcroft v. Iqbal to affirmative defenses would also invite many more motions to strike, which achieves little. Most civil cases are resolved before trial, and the Court rarely has to deal with most affirmative defenses. Motions to dismiss help resolve cases; motions to strike, in most cases, waste everyone’s time. In the case where a motion to strike is useful — statutes of limitations, some unique defenses — the issues are largely legal, and the facts are better developed in motion practice than in the pleadings. The Court is thus not convinced, based on the lack of factual allegations,
II. THE DESCO DEFENDANTS ADEQUATELY PLED A FAILURE-TO-STATE-A-GLAIM DEFENSE.
The DESCO Defendants’ first affirmative defense states: “The Third Amended Complaint fails to state a claim against DESCO Defendants upon which relief can be granted.” DESCO Defendants’ TA at 22. In addition to attacking the defense as failing to state a factual basis, Lane contends that “[f]ailure to state a claim is not a proper affirmative defense but, rather, asserts a defect in [plaintiffs] prima facie case.” First Memorandum at 6 (quoting Barnes v. AT & T Pension Ben. Plan-Nonbargained Program,
The DESCO Defendants respond that the defense is properly pled. They contend that rule 12 requires all defenses to be pled in an answer. See Fed.R.Civ.P. 12(b) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.”). They also contend that their first affirmative defense mirrors form 30 in the appendix to the rules, which, under rule 84, is sufficient as a matter of law.
The Court agrees with the DESCO Defendants, and denies Lane request that it strike DESCO Defendants’ first affirmative defense. Again, Form 30 provides an example an example of an “Answer Presenting Defenses Under Rule . 12(b).” Fed.R.Civ.P. Form 30. The section titled “Failure to State a Claim” states, in its entirety: “4. The complaint fails to state a claim upon which relief can be granted.” Fed.R.Civ.P. Form 30. Because the DESCO Defendants’ first affirmative defense is substantively the same as form 30, which is sufficient under the rules, see Fed.R.Civ.P. 84 (“The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.”), the Court finds that the DESCO Defendants’ first affirmative defense is adequately pled. The reasons for this defense are better set forth in a rule 12(b)(6) motion rather than at length in the answer.
III. THE COURT STRIKES THE DESCO DEFENDANTS’ NEGATIVE DEFENSES.
Lane contends that the DESCO Defendants’ affirmative defenses 21-25 are negative defenses, not affirmative defenses, because they attack the elements of his primafacie case.
“An affirmative defense, under the meaning of Fed.R.Civ.P. 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 plaintiffs claim are proven.” Roberge v. Hannah Marine Corp., No. 96-1691,
The DESCO Defendants’ argument that the Court should not strike the negative defenses because Lane has not shown prejudice is unavailing, because a movant is not required to show prejudice to prevail on a motion to strike. Rule 12(f) states:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) 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.
Fed.R.Civ.P. 12(f). The rule does not require that a movant show prejudice, and the advisory committee notes do not contemplate such a requirement. Moreover, the United States Court of Appeals for the Ninth Circuit has expressly rejected requiring a movant to show prejudice to prevail on a motion to strike. See Atlantic Richfield Co. v. Ramirez,
Moreover, the United States Court of Appeals for the Tenth Circuit has not included prejudice among the elements a litigant must show to prevail on a motion to strike. On the contrary, in Burrell v. Armijo,
[T]he district court granted the defendants’ motion under Fed.R.Civ.P. 12(f) and struck several paragraphs of the complaint. See Fed.R.Civ.P. 12(f) (authorizing a court to strike any portion of a pleading that is “redundant, immaterial, impertinent, or scandalous”). On appeal, the Bur-rells argue that the district court erred in granting the motion to strike because the stricken paragraphs are related to their claims. We have thoroughly reviewed the portion of the complaint at issue and conclude that none of it is relevant to the question of sovereign immunity, the resolution of which moots the parties’ appellate arguments on the § 1981 and § 1985 claims. In addition, the Burrells do not argue that the order prejudiced them in their presentation of evidence at trial. Accordingly, even if the court erred in striking portions of the complaint — which we do not suggest — any error was harmless.
Professors Wright and Miller assert:
The district court possesses considerable discretion in disposing of a Rule 12(f) motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because federal judges have made it clear, in numerous opinions they have rendered in many substantive contexts, that Rule 12(f) motions to strike on any of these grounds are not favored, often being considered purely cosmetic or “time wasters,” there appears to be general judicial agreement, as reflected in the extensive ease law on the subject, that they should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action.
Thus, it is not surprising that a motion to strike frequently has been denied when the court believes that no prejudice could result from the challenged allegations, even though the offending matter literally is within one or more of the categories set forth in Rule 12(f).
5C C. Wright & A. Miller, supra, § 1382 (footnotes omitted). For support, Wright and Miller cite, along with a host of district court opinions — many relying on Wright and Miller for authority — two opinions from United States Courts of Appeals. The first is Augustus v. Bd. of Public Instruction of Escambia County, Fla.,
A disputed question of fact cannot be decided on motion to strike. It is true, also, that when there is no showing of prejudicial harm to the moving party, the courts generally are not willing to determine disputed and substantial questions of law upon a motion to strike. Under such circumstances, the court may properly, and we think should, defer action on the motion and leave the sufficiency of the allegations for determination on the merits.
Augustus v. Bd. of Public Instruction of Escambia County, Fla.,
Wright and Miller also cite a Ninth Circuit ease as purportedly supporting the proposition that “it is not surprising that a motion to strike frequently has been denied when the court believes that no prejudice could result from the challenged allegations, even though the offending matter literally is within one or more of the categories set forth in Rule 12(f).” Fifth Circuit C. Wright & A. Miller, supra, § 1382 & n.ll (citing Idaho Sporting
We reject the district court’s alternative ruling that counts one and two should be struck as redundant to counts four and five under Federal Rule of Civil Procedure 12(f), as the counts seek to enforce different duties of the Forest Service — the first two deal with the Forest Service’s substantive duty to ensure species viability throughout the forest, and the latter two with the Forest Service’s procedural duty to evaluate environmental effects.
Idaho Sporting Congress, Inc. v. Alexander,
We affirm the district court’s decision striking the fourth and fifth counterclaims seeking declaratory relief under the PMPA. These counterclaims were duplica-tive of Arco’s declaratory action. See Fed. R.Civ.P. 12(f) (authorizing district courts to strike from the pleadings “any redundant, immaterial, impertinent, or scandalous matter”). We reject Ramirez’ contention that we should require the moving party to demonstrate prejudice in order to justify striking redundant material. Rule 12(f) says nothing about a showing of prejudice and allows a court to strike material sua sponte. We decline to add additional requirements to the Federal Rules of Civil Procedure when they are not supported by the text of the rule. See In re Glenfed [GlenFed, Inc. Securities Litigation ], 42 F.3d [1541,] 1546 [(9th Cir.1994)] (‘We are not permitted to add new requirements to Rule 9(b) simply because we like the effects of doing so.”).
Atlantic Richfield Co. v. Ramirez,
The Court agrees with the Ninth Circuit that it should not add a requirement that the drafters ’ did not place there, and that the Supreme Court and Congress did not ratify. While requiring prejudice may eliminate needless motions to strike that seek only to beautifying the pleadings for their own sake without benefit to the parties, cf. Comment, supra at 1184-84 (“[The drafters] argued that lawyers’ energies were better devoted to ‘the actual work of trial and decision,’ rather than the ‘beautifying of the pleadings.’”) (quoting Charles Clark, The New Federal Rules of Civil Procedure: The Last Phase— Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A.J. 976, 977 (1937)), the rales do not require a showing of prejudice, and the Court is “not permitted to add new requirements to Rule [12(f) ] simply because we like the effects of doing so.” In re GlenFed, Inc. Securities Litigation,
The DESCO Defendants’ thirty-first affirmative defense states that the “DESCO Defendants presently have insufficient knowledge and information upon which to form a belief as to whether they have additional, as yet unstated, affirmative defenses available,” and therefore “reserve the right to assert additional affirmative defenses.” DESCO Defendants TA at 30. Similarly, the Individual Defendants’ TA states that the “Individual Defendants reserve the right to assert additional affirmative defenses.” Individual Defendants TA at 17. Lane argues that the “assertion by the defendants of a reserved right to rely upon unpleaded defenses is simply not a defense of any kind, much less an affirmative one.” First Memorandum at 9 (quoting Palmer v. Oakland Farms, Inc.,
The DESCO Defendants respond that, “although the reservation in the DESCO Defendants’ 31st defense of as yet unpled defenses may not be ‘a defense of any kind, much less an affirmative one,’ [Lane] has shown no prejudice of any kind to his claim for relief resulting from inclusion of this statement in the answer.” DESCO Defendants’ Response at 11. Similarly, the Individual Defendants contend that Lane fails to show he suffered any prejudice from the preservation of defenses.
Again, “[a]n affirmative defense, under the meaning of Fed.R.Civ.P. 8(c), is a defense that does not negate the elements of the plaintiffs claim, but instead precludes liability even if all of the elements of the plaintiffs claim are proven.” Roberge v. Hannah Marine Corp.,
V. THE COURT REQUIRES THE INDIVIDUAL DEFENDANTS TO AMEND THEIR ANSWER TO COMPLY WITH RULE 8(b).
The Defendants declined to respond to some of Lane’s allegations, contrary to the
The DESCO Defendants respond that, because they filed an general denial, they “have denied the allegations in each of the paragraphs that Lead Plaintiff takes issue with, including the paragraphs in which the DES-CO Defendants note that the allegation in the complaint is actually a legal conclusion.” DESCO Defendants’ Response at 13 (emphasis in original). The DESCO Defendants contend that, consequently, there is no point in requiring them to “amend their answer to include an ‘outright denial’ when they already have denied all of the allegations in the complaint not specifically admitted.” DES-CO Defendants’ Response at 13. The Individual Defendants offer a similar argument, contending that, “[a]t this point, the Individual Defendants would have no choice but to deny any allegation they did not already admit,” rendering amendments to their answer a futile exercise. Individual Defendants’ Response at 8. Lane replies that DESCO’s reliance on a boilerplate and “general denial” in the Answer’s introduction does not absolve it of its obligation to specifically address and properly answer each of his allegations.
The Court agrees that the Defendants’ responses do not comply with rule 8(b), but only the Individual Defendants must amend them Answer. Rule 8 requires defendants responding to a complaint to “admit or deny the allegations asserted against it by an opposing party.” Fed.R.Civ.P. 8(b)(1)(B). An allegation of the complaint is admitted if “a responsive pleading is required and the allegation is not denied.” Fed.R.Civ.P. 8(b)(6). In addition to a denial or admission, a party may also respond that it “lacks knowledge or information sufficient to form a belief about the truth of an allegation,” which has the effect of a denial. Fed.R.Civ.P. 8(b)(5). Rule 8(b) therefore permits only three possible responses to a complaint: (1) admission; (2) denial; or (3) a disclaimer statement in compliance with Rule 8(b)’s provision for lack of knowledge or information, which is deemed a denial. One way a defendant may comply with these requirements is through a general denial. Rule 8(b)(3) provides:
General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading — including the jurisdictional grounds — may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
Fed.R.Civ.P. 8(b)(3).
Defendants must respond to all of a plaintiffs allegations. See Fed.R.Civ.P. 8(b)(l)(B)(“In responding to a pleading, a party must ... admit or deny the allegations asserted against it by an opposing party.”). Responses that documents speak for themselves and that allegations are legal conclusions do not comply with rule 8(b)’s requirements. See Thompson v. Ret. Plan
Moreover, the Court previously rejected the Defendants’ request to remove the allegations from the TAC that the Individual Defendants now decline to answer. See Lane v. Page,
The DESCO Defendants’ general denial distinguishes them from the Individual Defendants’ situation. Because the DESCO Defendants filed a general denial, they “deny all [allegations] except those specifically admitted.” Fed.R.Civ.P. 8(b)(3). Because the statements that documents speak for themselves and that allegations are legal conclusions are neither admissions nor denials, the statements do not specifically admit the allegations, and the allegations are denied under the general denial. The Individual Defendants, on the contrary, did not file a general denial. Because an allegation of the complaint is admitted if “a responsive pleading is required and the allegation is not denied,” Fed.R.Civ.P. 8(b)(6), if they do not amend their answer, they are deemed to have admitted the allegations.
The Court thus orders the Individual Defendants to either admit, deny, or claim insufficient knowledge or information to form a belief about the truth of Lanes allegations where they have declined to respond to allegations on grounds that: (i) allegations in Lane’s TAC contain “legal conclusions to which no response is required,” Individual Defendants’ TA ¶¶8-9, 38, 47, 49, 52, 55, 57, 60, at 3, 8-12; (ii) the Proxy Statement “speaks for itself,” Individual Defendants’ TA ¶¶ 3-4, 6, 12-18, 20-21, 33, 36, 43-44, 47, 49, 52, 55-58, at 1-5, 7-12; and (iii) the allegations were “dismissed by the Court, thus no response is needed,” Individual Defendants’ TA ¶¶ 39-42, 46, 50-51, at 8-11. Because the DESCO Defendants filed a general denial, they have denied all of the allegations to which they responded that: (i) the allegations in Lane’s TAC contain “legal conclusions, which requires no response,” DESCO Defendants’ TA ¶¶ 9, 22-31, 38, 40-42, 56, 60, at 4, 7-9,11-12,19; and (ii) the Proxy Statement “speaks for itself,” DESCO Defendants’ TA ¶¶ 3-4, 12-21(a), 21(b)(i), 37, 39, 40(b), 42-52, 55-58, at 2, 4-6, 10-20. The DESCO Defendants also pled a general denial. See id. at 1 (“DESCO Defendants generally deny all allegations in the Third Amended Complaint, except those specifically admitted below.”). While the DESCO Defendants amend their Answer as the Court has already ordered, they may — but the Court
IT IS ORDERED that (i) Lead Plaintiffs Opposed Motion to Strike Certain of the D.E. Shaw Defendants’ Affirmative Defenses Pursuant to Rule 12(f), filed August 9, 2010 (Doc. 221), and Lead Plaintiffs Opposed Motion to Strike Certain of the Individual Affirmative Defenses Pursuant to Rule 12(f), are granted in part and denied in part as set forth in this Memorandum Opinion and Order; and (ii) the Defendants shall file their amended answers within ten days from the date of this Memorandum Opinion and Order.
Notes
. The DESCO Defendants are Defendants The D.E. Shaw Group, D.E. Shaw & Co. L.P., D.E. Shaw Real Estate Portfolios 1, L.L.C., D.E. Shaw & Co., LLC, D.E. Shaw & Co., Inc., D.E. Shaw Investment Group, LLC, D.E. Shaw & Co. II, Inc., George Rizk, and Anne Dinning.
. The Individual Defendants are Defendants Barbara Page, Sosimo Padilla, Joe S. Chavez, Josie Castillo, Charles V. Pena, Georgia Baca, Troy K. Benavidez, RayMares, Jr., Randolph M. Sanchez.
. On this basis, Lane challenges the following of DESCO Defendants’ affirmative defenses: Second Defense, Mitigation of Damages; Third Defense, Fault of Plaintiff; Fourth Defense, Estop-pel; Fifth Defense, Waiver; Sixth Defense, Laches; Seventh Defense, Unclean Hands; Eighth Defense, Consent; Ninth Defense, Ratification; Eleventh Defense, Justification; Thirteenth Defense, Unjust Enrichment; Fourteenth Defense, Actual Knowledge; Fifteenth Defense, Constructive Knowledge; Sixteenth Defense, Assumption of Risk; Eighteenth Defense, Negative Causation/Extraneous Conditions; Twenty-Sixth Defense, Contributing Negligence; Twenty-Seventh Defense, Fault of Third Parties; Twenty-Eighth Defense, Proportionate Liability; Twenty-Ninth Defense, Comparative Fault; and Thirtieth Defense, Public Information. See DESCO Defendants’ TA at 22-29.
. On this basis, Lane challenges the following of the Individual Defendants’ affirmative defenses: First Defense, Mitigation of Damages; Second Affirmative Defense, Estoppel; Third Affirmative Defense, Waiver; Fourth Affirmative Defense, Ratification; Fifth Affirmative Defense, Unjust Enrichment; Sixth Affirmative Defense, Actual Knowledge; Seventh Affirmative Defense, Constructive Knowledge; Eighth Affirmative Defense, Assumption of Risk; Ninth Affirmative Defense, Good Faith; Fourteenth Affirmative Defense, Contributory Negligence; Fifteenth Affirmative Defense, Intervening Causation; Sixteenth Affirmative Defense, Proportionate Liability; Seventeenth Affirmative Defense, Comparative Fault; and Eighteenth Affirmative Defense, Public Information. See Individual Defendants TA at 13-17.
. District courts in the following cases have extended Bell Atlantic v. Twombly and Ashcroft v. Iqbal's heightened pleading standard to affirmative defenses: Bradshaw v. Hilco Receivables, LLC,
. Ameristar Fence Prod., Inc. v. Phx. Fence Co., No. CV-10-299-PHX-DGC,
. In Pollock v. Marshall,
. Some courts on both sides of the divide have suggested that the appearance of the terms “short and plain” in both rule 8(a) and (b) means that both clauses impose the same pleading requirements. HCRI TRS Acquirer, LLC v. Iwer,
. The Court's order is without prejudice to Lane’s ability to challenge the legal sufficiency of the affirmative defenses. Lane challenges the affirmative defenses only on the question of whether factual allegations are required.
. On this basis, Lane challenges the following of DESCO Defendants’ affirmative defenses: Twenty-First Defense, Not False or Misleading; Twenty-Second Defense, No Duty to Disclose; Twenty-Third Defense, Reasonable Belief Regarding the Truth; Twenty-Fourth Defense, Lack of Materiality; and Twenty-Fifth Defense, Lack of Reliance. See DESCO Defendants’ TA at 27-28.
. In Kinnear-Weed Corp. v. Humble Oil & Refining Co., the Fifth Circuit stated:
The allegations of paragraph 12 have no proper place in the trial or disposition of the other claims upon which the suit is based, and might serve to prejudice the defendant or to prolong the trial. The district court did not err, therefore, in sustaining the defendant's motion to strike paragraph 12.
. Relying on Wright and Miller, the Court previously stated that “[rjule 12(f) motions to strike ... should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action.” Lane v. Page,
The only basis that the Director Defendants assert for striking the contested factual allegations is that the allegations are “immaterial.” While the Court has found that certain of the alleged facts are not material, the Court’s assessment had to do with whether the alleged facts were material to shareholders and not whether the facts were material to the suit generally.
Here, the factual allegations are related to the suit, even if they do not independently establish a theory of recovery. They deal with purported dishonesty in the course of developing and issuing a proxy statement, and in convincing shareholders to vote in favor of a merger, which is what the case is about. Furthermore,*601 the Director Defendants do not put forth any prejudice that those allegations will cause them, other than Lane being permitted discovery on them. If Lane is able to clear the hurdles of the PSLRA and the Federal Rules of Civil Procedure by pleading a valid claim, he should be allowed to use discovery to probe further into all of the ways in which he alleges that the Defendants’ conduct was fraudulent. Discovery is not, under the rules at least, strictly limited to the claims, but to evidence that might reasonably lead to admissible evidence of the asserted claims. The facts pled thus have some connection to the case and do not unduly prejudice the Director Defendants. The Court therefore will not strike the challenged facts, nor will it deny the motion for leave to amend on condition that Lane delete them from the Third Amended Complaint.
Lane v. Page,