(PC) Spencer v. Lopez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 Case No. 1:20-cv-01203-JLT-BAK (SKO) (PC) 11 EDWARD B. SPENCER, ORDER ADOPTING IN PART AND 12 Plaintiff, DECLINING TO ADOPT IN PART FINDINGS AND RECOMMENDATIONS 13 v. ORDER GRANTING PLAINTIFF’S MOTION 14 D. LOPEZ, TO STRIKE THIRD AFFIRMATIVE DEFENSE 15 Defendant. 16 (Doc. 48; Doc. 29; Doc. 31) 17 18 Edward B. Spencer is proceeding pro se and in forma pauperis in this civil rights action 19 brought pursuant to 42 U.S.C. § 1983. In his complaint, Spencer asserts Lopez retaliated against 20 Spencer for having filed of a grievance against Lopez at the correctional facility where Spencer is 21 incarcerated, thereby violating his First Amendment rights. (Doc. 12 at 7.) Spencer also submitted 22 a memorandum to the associate warden regarding apparent deficiencies with an ADA accessible 23 shower in the facility. (Id.) After Spencer submitted the grievance and memorandum, he was 24 transferred to an allegedly less desirable portion of the facility. (Id. at 7-9.) 25 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 26 § 636(b)(1)(B) and Local Rule 302. On May 27, 2022, the assigned magistrate judge issued 27 findings and recommendations to deny Spencer’s motions to strike affirmative defenses. (Doc. 28 48.) Following an extension of time, Spencer timely filed objections on July 7, 2022. (Doc. 53.) 1 According to 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this 2 case. Having carefully reviewed the entire file, including Spencer’s objections, the Court 3 ADOPTS in part and DECLINES to adopt in part the finds the findings and recommendations. 4 In particular, Spencer did not object to the denial of the motion to strike the first and second 5 affirmative defense, and the Court adopts the magistrate judge’s conclusions with respect to those 6 defenses. However, Spencer’s objections to the findings and recommendations regarding the third 7 affirmative defense warrant additional consideration. 8 Lopez’s third affirmative defense states, in its entirety: “Plaintiff’s own conduct 9 contributed to his damages, if any.” (Doc. 30 at 10.) Spencer argues this bare assertion of 10 negligence or contributory fault does not satisfy the fair notice standard with which defendants 11 must comply to properly plead an affirmative defense. (Doc. 36 at 2.) The magistrate judge 12 reasoned that even if Lopez’s third affirmative defense was insufficiently plead, Spencer had not 13 shown prejudice such that the motion to strike should be granted. (Doc. 48 at 6.) 14 “Motions to strike are generally regarded with disfavor because of the limited importance 15 of pleading in federal practice, and because they are often used as a delaying tactic.” Neilson v. 16 Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Accordingly, “courts 17 often require a showing of prejudice by the moving party before granting the requested relief.” 18 Quintana v. Baca, 233 F.R.D. 562, 564 (C.D. Cal. 2005) (internal quotations omitted). Many 19 courts find that a motion to strike “should be denied unless the matter has no logical connection to 20 the controversy at issue and may prejudice one or more of the parties to the suit.” Rivers v. Cnty. 21 of Marin, 2006 WL 581096, at *2 (N.D. Cal. Mar. 6, 2006) (emphasis in original). Granting a 22 motion to strike may also be appropriate where it streamlines “the ultimate resolution of the 23 action.” State of Cal. ex rel. State Lands Comm’n v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 24 1981). Ultimately, the decision lies within the “sound discretion of the trial court.” Neilson, 290 25 F. Supp. 2d at 1152. Upon granting motion and in the absence of prejudice to the movant, “leave 26 to amend should be freely given.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979). 27 The vast majority of cases in the Ninth Circuit evaluate whether to grant a Rule 12(f) 28 motion to strike an affirmative defense on a “fair notice” standard, without a separate showing of 1 prejudice. See, e.g. Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015); see 2 also Simmons v. Navajo Cnty., Ariz, 609 F.3d 1011, 1023 (9th Cir. 2010) overruled on other 3 grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). “The key to 4 determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair 5 notice of the defense.” Wyshak, 607 F.2d at 827; see also Simmons, 609 F.3d at 1023 (quoting In 6 re Gayle Sterten, 546 F.3d 278, 285 (3d Cir. 2008) (noting that “the proper focus of our inquiry” 7 is whether framing the defense as a denial of an allegation “specifically deprived [the plaintiff] of 8 an opportunity to rebut that defense or to alter her litigation strategy accordingly”)). Fair notice 9 involves only “describing the defense in general terms.” Kohler, 779 F.3d at 1019. “Although fair 10 notice is a low bar that does not require great detail, it does require a defendant to provide some 11 factual basis for its affirmative defenses.” Gomez v. J. Jacobo Farm Lab. Contractor, Inc., 188 F. 12 Supp. 3d 986, 992 (E.D. Cal. 2016). 13 For affirmative defenses that allege plaintiff’s contributory negligence or comparative 14 fault, courts require the defendant to plead, at least in general terms, the conduct the defendant 15 contends contributed to the plaintiff’s injuries or damages. Kaur v. City of Lodi, 2015 WL 16 5560214, at *2-3 (E.D. Cal. Sep. 21, 2015) (“A bare assertion of negligence or contributory fault 17 without ‘any indication of the conduct supporting the defense’ does not pass muster, even under 18 the fair notice standard.”). For example, in Leos v. Rasey, the court granted a motion to strike 19 defendants’ affirmative defenses claiming contributory negligence and failure to mitigate 20 damages because it did not “set for any facts to suggest why they think this is so.” 2016 WL 21 1162658, at *3 (E.D. Cal. Mar. 24, 2016) (emphasis in original); see also Devermont v. City of 22 San Diego, 2013 WL 2898342, at *6 (S.D. Cal. Jun. 14, 2013) (striking affirmative defense that 23 claimed plaintiff’s own conduct caused the events at issue but providing no indication of what 24 conduct supported defendants’ claim). 25 In addition, in Roe v. City of San Diego, the affirmative defense that “Plaintiff’s 26 negligence and carelessness proximately contributed to the happening of the alleged incident, 27 injuries and damages complained of, if any such exist” did not surpass the fair notice standard. 28 289 F.R.D. 604, 611-12 (S.D. Cal. 2013) (internal quotations omitted). The court found the 1 affirmative defense improperly contained two separate legal doctrines because it failed to clarify 2 whether it concerned the plaintiff’s conduct before or after the injury, therefore, implicating both 3 contributory negligence and the failure to mitigate damages. Id. 4 In contrast, general descriptions of plaintiff’s conduct which allegedly contributed to the 5 injuries or damages provides fair notice and satisfies the pleading standard for affirmative 6 defenses. For instance, the court denied a motion to strike where the defense attributed plaintiff’s 7 contributory negligence to his “failure to cooperate with WELLS, disregard his lawful requests, 8 and the decedent’s ultimate decision to possess a firearm during his contact with the defendant 9 resulted in his death.” L.F. v. City of Stockton, 2018 WL 3817558, at *7 (E.D. Cal. Aug. 9, 2018). 10 Unlike in Roe and Devermont, this pleading provided “fair notice by specifying alleged conduct” 11 to support the defense. Id. 12 Lopez’s affirmative defense, however, does not provide fair notice. Rather, it mirrors the 13 defenses in Leos and Roe because it does not describe plaintiff’s conduct he believes to have been 14 negligent or which supports his defense. Lopez simply claims, “Plaintiff’s own conduct 15 contributed to his damages, if any.” (Doc. 30 at 10.) The bare assertion of “Plaintiff’s own 16 conduct” gives no indication of what actions or inactions Spencer took that Lopez believes 17 contributed to Spencer’s injuries or damages. Just as in Leos, the defense is devoid of any facts 18 regarding Spencer’s alleged contributory negligence. See Leos, 2016 WL 1162658, at *3 (striking 19 the affirmative defense claiming “Plaintiff contributed to his injuries and that he has failed to 20 mitigate his damages”). Moreover, like in Roe, the defense fails to specify whether Spencer’s 21 actions before or after his injury supposedly contributed to his damages, improperly implicating 22 two defenses: contributory negligence and failure to mitigate damages. Because Lopez’s third 23 affirmative defense fails the fair notice standard, the Court GRANTS Plaintiff’s motion to strike 24 Lopez’s third affirmative defense with leave to amend Lopez’s answer (Doc. 30). 25 ORDER 26 For the reasons set forth the above, 27 1. The findings and recommendations issued on May 27, 2022 (Doc. 48) are ADOPTED 28 in part and DECLINED to adopt in part as described above. 1 2. Spencer’s motions to strike Lopez’s affirmative defenses (Doc. 29 & 31) are 2 GRANTED in part, as to Lopez’s third affirmative defense. 3 3. Lopez’s third affirmative defense is STRICKEN with leave to amend (Doc. 30). 4 5 IT IS SO ORDERED. 6 Dated: _ August 11, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28