United States District Court, D. Maryland
PAUL Y. BARON, JR., Plaintiff
DIRECTV, LLC, Defendant
MEMORANDUM AND ORDER
K. Bredar United States District Judge.
before the Court is Plaintiff Paul Y. Baron, Jr.'s motion
to strike Defendant DIRECTV, LLC's affirmative defenses
pursuant to Federal Rule of Civil Procedure 12(f). (ECF No.
20.) The motion has been briefed (ECF Nos. 25 & 26), and
no hearing is required, Local Rule 105.6 (D. Md. 2016). The
motion will be denied.
has premised his motion to strike all of DIRECTV's
affirmative defenses on the proposition that affirmative
defenses must meet the plausibility pleading standard of
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Baron
acknowledges the undersigned's declination to apply the
Iqbal-Twombly standard to affirmative defenses in
the earlier case of LBCMT 2007-C3 Urbana Pike, LLC v.
Sheppard, 302 F.R.D. 385 (D. Md. 2014), but seeks to
preserve the issue for appeal. (Pl.'s Mot. 1 n.1.) Should
the Court not grant Baron's request, he alternatively
asks that the Court strike four specific affirmative defenses
as well as DIRECTV's request for attorney's fees.
Rule 12(f) permits a court to “strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” The Fourth Circuit
has stated, Rule 12(f) motions are generally viewed with
disfavor “because striking a portion of a pleading is a
drastic remedy and because it is often sought by the movant
simply as a dilatory tactic.” 5A A. Charles Alan Wright
et al., Federal Practice & Procedure
§ 1380, 647 (2d ed. 1990). Nevertheless, “a
defense that might confuse the issues in the case and would
not, under the facts alleged, constitute a valid defense to
the action can and should be deleted.” Id.
§ 1381 at 665.
Waste Management Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001). In Waste
Management, the Court affirmed the district
court's decision to grant a Rule 12(f) motion and to
strike an affirmative defense that had no legal precedent in
the context of that case. But courts generally refrain from
striking affirmative defenses in the absence of a showing
that, by not doing so, the movant would be unfairly
prejudiced. See Lockheed Martin Corp. v. United
States, 973 F.Supp.2d 591, 592 (D. Md. 2013).
Court reaffirms its earlier holding that a defendant's
affirmative defenses need not be pleaded according to the
Iqbal-Twombly standard. Doing otherwise risks
putting this Court at odds with the Fourth Circuit's
standard applicable to Rule 12(f) motions, as stated in
Waste Management. It is still the undersigned's
opinion, in the absence of binding precedent, that
affirmative defenses need only meet the pleading standard of
Rule 8(b)(1)(A), which provides, “In responding to a
pleading, a party must state in short and plain terms its
defenses to each claim asserted against it.” That
standard is noticeably different from Rule 8(a)(2)'s
pleading standard governing complaints: “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.”
plaintiff is required to show his entitlement to
relief, but a defendant is not. A complaint's required
showing of entitlement to relief lay at the heart of the
Supreme Court's analysis in Twombly. That
opinion pointedly referred to Rule 8(a)(2)'s mandated
showing as a “threshold requirement.” 550 U.S. at
557. See also Iqbal, 556 U.S. at 679 (“But
where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged--but it has not ‘show[n]'-‘that
the pleader is entitled to relief.'” (citing Fed.
R. Civ. Proc. 8(a)(2))). If Rule 8(b)(1)(A) similarly
required a defendant to show his entitlement to relief, then
application of the Iqbal-Twombly standard to
affirmative defenses would be appropriate. For those reasons
and for those stated earlier in Sheppard, the Court
declines to evaluate the sufficiency of DIRECTV's
affirmative defenses under Rule 8(a)(2)'s standard
applicable to complaints.
Court next considers whether specific affirmative defenses
pled by DIRECTV should be stricken as “insufficient,
” pursuant to Rule 12(f). Although Baron lists twelve
affirmative defenses that he contends are “irrelevant
and unsupported” (Pl.'s Mot. 6), he only presents
argument as to four of those (id. 7-9).
Consequently, the Court will only address those four
affirmative defense, DIRECTV has asserted Baron's claims
are barred because they are subject to arbitration. (Ans.
Aff. Defs. ¶ 3, ECF No. 12.) In his complaint, Baron
alleges he did not enter into any contracts with DIRECTV for
satellite television services and, thus, DIRECTV cannot offer
any “supportable argument that arbitration can be
maintained as an affirmative defense.” (Pl.s' Mot.
7.) Baron's argument cannot be sustained on the strength
of his allegation that he did not enter into a contract with
DIRECTV for the reason that the agreement under which the
delinquent subscriber, Terra Rygh, obtained those
services-and for which Baron paid but now disputes
DIRECTV's entitlement to his payment-could well have
obtained an arbitration clause; it is not implausible that an
arbitration provision in Ms. Rygh's contract would reach
Baron's claims asserted in his complaint. Obviously, the
validity of this affirmative defense cannot be adjudicated at
this early point in the proceedings, prior to discovery and
dispositive motions under Rule 56. Accordingly, the defense
of arbitration is not insufficient and, thus, not subject to
being stricken under Rule 12(f).
Baron contends DIRECTV may not rely upon the defense of
accord and satisfaction because there are no allegations in
the complaint to support the defense. (Id.) He cites
no authority for the proposition that a defendant may only
plead affirmative defenses that rest upon specific
allegations in the complaint. A defendant bears the burden of
proving an affirmative defense, Goodman v. Prax Air,
Inc., 494 F.3d 458, 464 (4th Cir. 2007), but is not
restricted to relying upon the plaintiff's allegations
for such proof. Again, the prematurity of Baron's
argument is clear, given the need to resort to as-yet
undiscovered evidence to evaluate the defense.
also argues DIRECTV may not invoke the affirmative defense of
statute of limitations because it has not posited an
applicable limitations period less than eighteen months.
(Id. 8.) Baron's complaint is noticeably vague
as to when DIRECTV's alleged misconduct occurred in
relation to the filing of the complaint. He ambiguously
alleges, “More than one year and six months after
DIRECTV reached into BARON's bank account and stole money
there from [sic] and demanded [sic] that
DIRECTV return the money, DIRECTV has refused to return the
money.” (Compl. ¶ 33, ECF No. 2.) DIRECTV's
pleading the statute of limitations appears to be reasonable
given the lack of clarity in the complaint. This defense will
not be stricken.
final affirmative defense sought by Baron to be stricken is
that of “contributory negligence and/or the comparative
fault of third parties.” (Ans. Aff. Def. ¶ 20.)
Baron regards this defense as “absurd” because he
did not plead an action of negligence. (Pl.'s Mot. 8.)
DIRECTV argues that, even though Ms. Rygh is not a named
party,  she is nevertheless potentially at fault
in this case and that a contributing cause of any damage
Baron claims is her failure to pay DIRECTV. This may not be
the strongest argument, and it may well be that the defense
is found not to be of any merit, but for now, the Court
cannot conclusively say the defense is insufficient.
said by Judge Blake in Sprint Nextel Corp. v. Simple
Cell, Inc., Civ. No. CCB-13-617, 2013 WL 3776933 (D. Md.
July 17, 2013), when faced with arguments similar to
To the extent that any of the allegedly defective defenses
that have been pled . . . have no basis, there will be
nothing for [plaintiff] to discover or litigate. If the
defendants can adduce evidence supporting these defenses, and
fully articulate them, granting the motion to strike and
permitting the defendants time to amend their answer to more
thoroughly explain the basis of each defense, if there is
any, will only delay the inevitable litigation of the merits.
Otherwise, if no valid basis exists for ...