Xiong v. G4S Secure Solutions (USA) Inc. ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MAI KATY XIONG, an individual, No. 2:19-cv-00508-JAM-EFB 11 Plaintiff, 12 v. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 13 G4S SECURE SOLUTIONS (USA) MOTION TO STRIKE DEFENDANT’S INC., a corporation, AFFIRMATIVE DEFENSES 14 Defendants. 15 16 Plaintiff Mai Katy Xiong (“Xiong” or “Plaintiff”) brings 17 this putative class action against G4S Secure Solutions (USA) 18 Inc. (“G4S” or “Defendant”) for violating the California Labor 19 Code by failing to compensate Xiong for missed meal periods and 20 failing to provide accurate wage statements. Compl., ECF No. 1. 21 Defendant filed an Answer which asserts thirty-three affirmative 22 defenses. Answer, ECF No. 6. Plaintiff moves to strike all of 23 Defendant’s affirmative defenses. Mot., ECF No. 12. 24 For the reasons set forth below, this Court GRANTS IN PART 25 and DENIES IN PART Plaintiff’s motion.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for July 30, 2019. 1 I. OPINION 2 A. Legal Standard 3 Under Federal Rule of Civil Procedure 12(f), a court may 4 strike any “insufficient [affirmative] defense” from an answer. 5 Fed. R. Civ. P. 12(f). An affirmative defense may be 6 insufficient as a matter of law or as a matter of pleading. 7 Butcher v. City of Marysville, No. 2:18-cv-02765-JAM-CKD, 2019 WL 8 3337888, at *7 (E.D. Cal. July 25, 2019). “An affirmative 9 defense is insufficient as a matter of law ‘only if it lacks 10 merit under any set of facts a defendant might allege.’ An 11 affirmative defense is insufficient as a matter of pleading when 12 it fails to ‘provide the plaintiff fair notice of the defense.’” 13 Id. (internal citations omitted). Consistent with its prior 14 decisions, this Court declines to apply the Bell Atlantic Corp. 15 v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 16 662 (2009) pleading standard to affirmative defenses. Id. 17 Motions to strike an affirmative defense as insufficient are 18 generally viewed with disfavor by the federal courts because of 19 their often dilatory or harassing purpose. See 5C Charles A. 20 Wright & Arthur R. Miller, Federal Practice & Procedure §§ 1380, 21 1381 (3d. ed., April 2019 update). 22 B. Insufficient as a Matter of Pleading 23 Plaintiff argues all thirty-three of Defendant’s affirmative 24 defenses are conclusory and should be stricken for failure to 25 afford fair notice. This Court finds that affirmative defenses 26 10, 12, 17, 18, 21, 22, 30, and 31 meet the fair notice standard 27 and the motion to strike these affirmative defense is denied. 28 However, this Court agrees that the remaining affirmative 1 defenses are lacking in factual detail and do nothing more than 2 identify and state, in general terms, the legal defense itself 3 without providing notice of the grounds upon which the defense 4 rests. See Kohler v. Staples the Office Superstore, LLC, 291 5 F.R.D. 464, 468-69 (S.D. Cal. 2013). That a defendant must 6 affirmatively state its defenses, including those listed 7 explicitly in Federal Rule of Civil Procedure 8(c)(1), does not 8 alter the required fair notice pleading standard. Kohler, 291 9 F.R.D. at 468-69; see also Bd. of Trustees of IBEW Local Union 10 No. 100 Pension Tr. Fund v. Fresno’s Best Indus. Elec., Inc., No. 11 1:13-CV-01545-AWI, 2014 WL 1245800, at *4 (E.D. Cal. Mar. 24, 12 2014). Thus, the motion to strike affirmative defenses 1, 2, 3, 13 4, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 19 and 32 is granted, with 14 leave to amend. See Kohler, 291 F.R.D. at 467 (“Unless it would 15 prejudice the opposing party, courts freely grant leave to amend 16 stricken pleadings.”) (citing Fed. R. Civ. P. 15(a)(2) and Wyshak 17 v. City Nat. Bank, 607 F.2d 824, 826 (9th Cir. 1979)). For the 18 same reasons, the motion to strike affirmative defenses 20, 23, 19 24, 25, 26, 27, 28, and 29 as insufficiently pleaded is granted, 20 but, as discussed below, leave to amend these defenses would be 21 futile because they are also insufficient as a matter of law. 22 C. Insufficient as a Matter of Law 23 Plaintiff argues nineteen of the thirty-three affirmative 24 defenses are deficient as a matter of law. Xiong brings claims 25 for missed meal periods and inaccurate itemized wage statements. 26 Given the causes of action, and considering the allegations 27 presented in the Complaint, this Court finds that affirmative 28 defenses 3, 4, 6, 7, 8, 13, 14, 15, and 16 lack merit under any 1 set of facts G4S might allege, and the motion to strike these 2 defenses as legally insufficient is therefore granted. 3 Nevertheless, because Defendant may be able to elucidate the 4 legal sufficiency of these defenses, this Court grants leave to 5 amend. On the other hand, this Court finds that affirmative 6 defenses 5 and 17 are not insufficient as a matter of law and the 7 motion to strike those defenses on that ground is denied. 8 Affirmative defenses 20, 23, 24, 25, 26, 27, 28, and 29 are 9 less defenses to the causes of action than denials of the 10 Complaint’s class allegations. The appropriate manner to raise 11 these arguments is in the context of a motion for class 12 certification and G4S will be permitted to do so. Fed. R. Civ. 13 P. 23(c)(1). Thus, the motion to strike affirmative defenses 20, 14 23, 24, 25, 26, 27, 28, and 29 is granted without leave to amend. 15 In affirmative defense 33, G4S seeks to reserve the right to 16 assert other affirmative defenses should the need arise. 17 However, because a “mere ‘reservation of affirmative defenses’ is 18 not an affirmative defense,” the motion to strike affirmative 19 defense 33 is granted without leave to amend. Kohler, 291 F.R.D. 20 at 473 (quoting E.E.O.C. v. Timeless Investments, Inc., 734 F. 21 Supp. 2d 1035, 1055 (E.D. Cal. 2010)). This Court recognizes 22 that G4S has not had the benefit of full discovery and may not 23 yet know all applicable affirmative defenses, but Rule 15 24 provides G4S the procedural mechanism to amend its pleading 25 should the need arise. Fed. R. Civ. P. 15(a); see Fresno’s Best 26 Indus. Elec., Inc., 2014 WL 1245800, at *4. 27 /// 28 /// 1 II. SANCTIONS 2 This Court issued its Order re Filing Requirements (“Filing 3 Order”) on March 22, 2019. ECF No. 3-2. The Filing Order limits 4 memoranda in support of and in opposition to motions to strike to 5 fifteen pages. The Filing Order also states that an attorney who 6 exceeds the page limits must pay monetary sanctions of $50 per 7 page. Plaintiff’s moving brief exceeds the page limit by two 8 pages. Defendant’s opposition brief exceeds the page limit by 9 three pages. This Court therefore ORDERS (1) Plaintiff’s counsel 10 to pay $100 to the Clerk of the Court within five days of the 11 date of this Order and (2) Defendant’s counsel to pay $150 to the 12 Clerk of the Court within five days of the date of this Order. 13 14 III. ORDER 15 For the reasons set forth above, this Court GRANTS IN PART 16 and DENIES IN PART Plaintiff’s Motion to Strike Defendant’s 17 Affirmative Defenses. ECF No. 12. This Court: 18 1. DENIES the motion to strike affirmative defenses 10, 19 12, 17, 18, 21, 22, 30, and 31 as insufficiently pleaded; 20 2. DENIES the motion to strike affirmative defenses 5 and 21 17 as legally insufficient; 22 3. GRANTS the motion to strike affirmative defenses 1, 2, 23 3, 4, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 19, and 32 as 24 insufficiently pleaded, with leave to amend; 25 4. GRANTS the motion to strike affirmative defenses 3, 4, 26 6, 7, 8, 13, 14, 15, and 16 as legally insufficient, with leave 27 to amend; and 28 5. GRANTS the motion to strike affirmative defenses 20, 1 23, 24, 25, 25, 26, 27, 28, 29, and 33 as legally insufficient, 2 without leave to amend. 3 If Defendant elects to amend its answer at this stage of the 4 litigation, it shall file an Amended Answer within twenty days of 5 this Order. 6 IT IS SO ORDERED. 7 Dated: August 13, 2019 kA teiren staves odermacr 7008 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28