(PC) Spencer v. Milan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, 1:20-cv-00682-JLT-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES 13 vs. (ECF No. 29.) 14 RICHARD MILAN, 15 Defendant. 16 17 18 I. BACKGROUND 19 Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds 21 against sole defendant Milam1 (“Defendant”) for subjecting Plaintiff to adverse conditions of 22 confinement in violation of the Eighth Amendment. On January 7, 2022, Defendant filed an 23 Answer to the complaint. (ECF No. 24.) 24 On January 24, 2022, Plaintiff filed a motion to strike some of Defendant’s affirmative 25 defenses. (ECF No. 29.) On February 25, 2022, Defendant filed an opposition to the motion. 26 (ECF No. 30.) 27 28 1 Sued as Milan. 1 II. MOTION TO STRIKE AFFIRMATIVE DEFENSES 2 A. Legal Standards 3 Although a defectively pled affirmative defense can be stricken under Federal Rule of 4 Civil Procedure 12(f), which authorizes the removal of “an insufficient defense,” motions 5 to strike such defenses are “regarded with disfavor because of the limited importance of pleading 6 in federal practice, and because they are often used as a delaying tactic.” Brooks v. Bevmo! Inc., 7 et al., No. 20-CV-01216-MCE-DB, 2021 WL 3602152, at *1 (E.D. Cal. Aug. 13, 2021) (quoting 8 Dodson v. Gold Country Foods, Inc., No. 2:13-cv-00336-TLN-DAD, 2013 WL 5970410 at * 1 9 (E.D. Cal. Nov. 4, 2013), citing Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 10 (C.D. Cal. 2003)). “Accordingly, courts often require a showing of prejudice by the moving 11 party before granting the requested relief.” Id. (quoting Vogel v. Linden Optometry APC, No. 12 CV 13–00295 GAF (SHx), 2013 WL 1831686 at * 2 (C.D. Cal. Apr. 30, 2013), citing Quintana 13 v. Baca, 233 F.R.D. 562, 564 (C.D. Cal. 2005)). Where no such prejudice is demonstrated, 14 motions to strike may therefore be denied “even though the offending matter was literally within 15 one or more of the categories set forth in Rule 12(f).” Id. (quoting N.Y.C. Emps.’ Ret. Sys. v. 16 Berry, 667 F. Supp. 2d 1121, 1128 (N.D. Cal. 2009)). Ultimately, “whether to grant a motion 17 to strike lies within the sound discretion of the district court.” Id. (quoting California Dep’t of 18 Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002)). 19 B. Discussion 20 Plaintiff brings this motion to strike on the grounds that Defendant’s boilerplate listing of 21 his First, Third, Fourth, Fifth, and Ninth affirmative defenses fail because they are irrelevant to 22 the claims asserted, vague, and conclusory. 23 Defendant argues that Plaintiff fails to allege that he is prejudiced by Defendant’s 24 affirmative defenses and how he is allegedly prejudiced by them. 25 Plaintiff has not shown that he would actually be prejudiced by the inclusion of any of 26 the specific affirmative defenses he seeks to exclude. This is insufficient, particularly since 27 motions to strike affirmative defenses are not favored. 28 /// 1 It bears noting that Plaintiff, a serial litigant in prisoner civil rights litigation with multiple 2 cases pending in this District, has filed similar motions to strike affirmative defenses in other 3 cases. For example, in Spencer v. Fairfield, Case No. 1:14-cv-00754-DAD-EPG at Doc. 30; 4 Spencer v. Sherman, Case No. 1:17-cv-00479-AWI-GSA at Doc. 22; Spencer v. Gutierrez, Case 5 No. 1:17-cv-01505-LJO-JDP at Doc. 23; and Spencer v. Lopez, Case No. 20-cv-01203-JLT- 6 BAK at Docs. 29, 31; Plaintiff filed motions to strike that use virtually the exact same language 7 employed in this motion, with an identical lack of any factual specificity in showing any actual 8 prejudice. 9 III. CONCLUSION 10 Therefore, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion 11 to strike, filed on January 24, 2022, is denied. 12 IT IS SO ORDERED. 13 14 Dated: April 19, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28