United States District Court, S.D. New York
OPINION & ORDER
KIMBA M. WOOD, District Judge.
On June 13, 2013, Mary Tardif ("Plaintiff") filed this action pursuant to 42 U.S.C. § 1983 against the City of New York, the New York City Police Department ("NYPD"), and various officers and employees of the NYPD ("Defendants"), alleging violations of her civil rights during the Occupy Wall Street protests. See (Compl. [Dkt. No. 1]). On December 5, 2013, Plaintiff filed an Amended Complaint, (Am. Compl. [Dkt. No. 10]), and on January 17, 2014, Defendant filed an Answer to the Amended Complaint, (Ans. to Am. Compl. [Dkt. No. 14]). The Answer asserts thirteen affirmative defenses. ( Id. at 23-25). Pursuant to Federal Rule of Civil Procedure 12(f), Plaintiff moves to strike Defendants' third, fourth, fifth, sixth, eighth, ninth, eleventh, twelfth, and thirteenth affirmative defenses, arguing that the defenses are factually insufficient and prejudice Plaintiff. For the reasons set forth below, the Court DENIES Plaintiff's motion to strike.
I. Standard for Reviewing Motions to Strike Affirmative Defenses
Federal Rule of Civil Procedure 12(f) provides that, "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "Motions to strike affirmative defenses are generally disfavored." Walsh v. City of New York, 585 F.Supp.2d 555, 557 (S.D.N.Y. 2008) (Sweet, J.) (internal quotation marks omitted). "The standard to prevail on a motion to strike an affirmative defense is demanding." New England Health Care Employees Welfare Fund v. iCare Mgmt., LLC, 792 F.Supp.2d 269, 288 (D. Conn. 2011). "[T]o prevail on a motion to strike: (1) there may be no question of fact which might allow the defense to succeed; (2) there may be no substantial question of law, a resolution of which could allow the defense to succeed; and (3) the moving party must show that it is prejudiced by the inclusion of the defense." Cognex Corp. v. Microscan Sys., Inc., 13-CV-2027, 2013 WL 6906221, at *7 (S.D.N.Y. Dec. 31, 2013) (Rakoff, J.) (internal quotation marks omitted).
Under Federal Rule of Civil Procedure 8(c), "[i]n responding to a pleading, a party must affirmatively state any... affirmative defense." Fed.R.Civ.P. 8(c). Plaintiff's motion is predicated on the argument that the heightened pleading standard set out by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and elaborated on in Ashcroft v. Iqbal, 556 U.S. 662 (2009), for pleadings under Federal Rule of Civil Procedure 8(a) also applies to affirmative defenses. (Mem. of Law in Supp. 4 [Dkt. No. 21]). Twombly and Iqbal require that "[t]o survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Swan Media Grp., Inc. v. Staub, 841 F.Supp.2d 804, 806 (S.D.N.Y. 2012) (Sweet, J.) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted). Neither the Second Circuit nor any other Circuit Court of Appeals has ruled on the applicability of the Twombly / Iqbal standard to affirmative defenses. District courts within this Circuit are divided on the applicability of the Twombly / Iqbal standard to affirmative defenses.
In Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F.Supp.2d 620 (S.D.N.Y. 2008) (Chin, J.), the Court explained that Twombly "requir[es] a flexible plausibility standard, which obligates a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. The question is whether the pleading alleges enough facts to state a claim for relief that is plausible on its face." Id. at 622 (internal quotation marks and citation omitted). The Court then went on to hold that, "[t]he standard on a motion to dismiss also applies to a motion to dismiss a counterclaim pursuant to Rule 12(b)(6) and a motion to strike an affirmative defense pursuant to Rule 12(f)." Id. Citing Aspex Eyewear, Inc., some courts within this Circuit have held "that the Rule 12(b)(6) standard, as elucidated in Twombly and Iqbal, governs the sufficiency of the pleading of affirmative defenses." E.E.O.C. v. Kelley Drye & Warren, LLP, 10-CV-655, 2011 WL 3163443, at *2 (S.D.N.Y. July 25, 2011) (Swain, J.); see also Tracy v. NVR, Inc., 04-CV-6541L, 2009 WL 3153150, at *7 (W.D.N.Y. Sept. 30, 2009) report and recommendation adopted as modified, 667 F.Supp.2d 244 (W.D.N.Y. 2009); cf. Godson v. Eltman, Eltman & Cooper, P.C., 285 F.R.D. 255, 259 (W.D.N.Y. 2012) ("[T]his Court finds that Twombly applies here at least to emphasize the importance... of providing the plaintiff with fair notice, buttressed by sufficient facts, of the affirmative defenses that the defendant intends to assert; thus allowing the plaintiff an opportunity to knowledgeably respond.").
More recently, many district courts within this Circuit have found that the Twombly/Iqbal standard does not apply to affirmative defenses. See, e.g., Adames v. G.B.Rests. Inc., 12-CV-569S, 2014 WL 202380, at *2 (W.D.N.Y. Jan. 16, 2014); Vale v. City of New Haven Police Dep't, 11-CV-00632, 2013 WL 5532133, at *3 (D. Conn. Oct. 4, 2013); Hon Hai Precision Indus. Co., Ltd. v. Wi-LAN, Inc., 12-CV-7900, 2013 WL 2322675, at *9 (S.D.N.Y. May 28, 2013) (Scheindlin, J.); Serby v. First Alert, Inc., 934 F.Supp.2d 506, 515-16 (E.D.N.Y. 2013); Scott v. WorldStarHipHop, Inc., 10-CV-9538, 2012 WL 5835232, at *3 (S.D.N.Y. Nov. 14, 2012) (Castel, J.); Petroci v. Transworld Sys., Inc., 12-CV-00729, 2012 WL 5464597, at *2 (W.D.N.Y. Oct. 19, 2012) report and recommendation adopted, 12-CV-729, 2012 WL 5464579 (W.D.N.Y. Nov. 8, 2012); Aros v. United Rentals, Inc., 10-CV-73, 2011 WL 5238829, at *3 (D. Conn. Oct. 31, 2011); cf. Raymond Weil, S.A. v. Theron, 585 F.Supp.2d 473, 489-90 (S.D.N.Y. 2008) (McMahon, J.) ("There is nothing dumber than a motion to strike boilerplate affirmative defenses; it wastes the client's money and the court's time."). The Court in Bayer CropScience AG v. Dow AgroSciences LLC, Civ. 10-1045, 2011 WL 6934557 (D. Del. Dec. 30, 2011), summarized the reasons courts have declined to apply the Twombly / Iqbal standard to affirmative defenses:
(1) textual differences between Rule 8(a), which requires that a plaintiff asserting a claim show entitlement to relief, and Rule 8(c), which requires only that the defendant state any defenses;
(2) a diminished concern that plaintiffs receive notice in light of their ability to obtain more information during discovery;
(3) the absence of a concern that the defense is "unlocking the doors of discovery";
(4) the limited discovery costs, in relation to the costs imposed on a defendant, since it is unlikely that either side will pursue discovery on frivolous defenses;
(5) the unfairness of holding the defendant to the same pleading standard as the plaintiff, when the defendant has only a limited time to respond after service of the complaint while plaintiff has until the expiration of the statute of limitations;
(6) the low likelihood that motions to strike affirmative defenses would expedite the litigation, given that leave to ...