United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate
27, 2018, Plaintiffs Ultimate Outdoor Movies, LLC and Laura
Landers (“Plaintiffs”) filed suit against
Defendants Charles Hunter, Matthew Dias, and FunFlicks
Audiovisuals (collectively “the California
Defendants”); Todd Severn and FunFlicks, LLC
(collectively, “the Severn Defendants”); and
James Gaither and NATJAY, LLC (collectively, “the
Gaither Defendants”). ECF 1. Plaintiffs amended the
Complaint on November 8, 2018. ECF 21. The Gaither Defendants
filed their Answer to the Amended Complaint on May 22, 2019.
ECF 126. The California Defendants filed their Answer to the
Amended Complaint on May 29, 2019. ECF 136.
pending is Plaintiffs' Motion to Strike the Defendants
James Gaither, NatJay, LLC, Charles Hunter, Matthew Dias, and
FunFlicks Audiovisuals's Affirmative Defenses. ECF 137.
The Gaither Defendants and the California Defendants opposed
the Motion. ECF 145. Plaintiffs did not file a Reply. No.
hearing is necessary. See Local Rule 105(6) (D. Md.
2018). For the reasons stated below, I shall grant
Amended Complaint alleged fraud; aiding and abetting; breach
of contract; violations of the Maryland Uniform Trade Secrets
Act, Md. Code Ann., Com. Law § 11-1201 et seq.,
and the Federal Trade Secrets Act, 18 U.S.C. § 1836;
defamation; intentional interference with contract;
violations of the Federal Wiretap Act, 18 U.S.C. § 2511,
and the Texas Wiretap Act, Tex. Civ. Prac. & Rem. Code
Ann. § 123.001 et seq.; violations of the
Federal Lanham Act, 15 U.S.C. §§ 1125(a)(1)(A)-(B);
unfair competition; intentional interference with economic
relations; and civil conspiracy. ECF 21. Plaintiffs alleged
fourteen counts against James Gaither, twelve counts against
NatJay, LLC, fourteen counts against Charles Hunter and
Matthew Dias, and fourteen counts against FunFlicks
23, 2019, the Court dismissed Counts I, III, IV, V, VIII, IX,
X, and XI against all Defendants, and dismissed Counts VI and
XII against the California Defendants. ECF 130. The remaining
claims against the Gaither Defendants are: breach of contract
(Count II); defamation (Count VI); violation of the
Federal Lanham Act (Count XII); unfair competition (Count
XIII); intentional interference with economic relations
(Count XIV); and civil conspiracy (Count XV). ECF 21, 129,
130. The remaining claims against the California Defendants
are: intentional interference with contract (Count VII);
unfair competition (Count XIII); intentional interference
with economic relations (Count XIV); and civil conspiracy
(Count XV). Id.
Gaither Defendants' and the California Defendants'
Answers to the Amended Complaint both assert the following
affirmative defenses: Plaintiffs fail to state a claim upon
which relief may be granted; Plaintiffs caused the damages
sought in the complaint; and Plaintiffs' claims are
barred by accord and satisfaction, assumption of the risk,
failure of consideration, fraud, contributory negligence,
illegality, license, injury by fellow servant, the doctrine
of waiver and estoppel, laches, payment and release, res
judicata, the statute of frauds, the statute of limitations,
the doctrine of unclean hands, Plaintiffs' own
breach(es), and failure to join necessary parties. ECF 126 at
36-37; ECF 136 at 31-32. Plaintiff seeks to strike these
affirmative defenses for failure to comply with the pleading
requirements set forth in Federal Rules of Civil Procedure 8
and 9(b). ECF 137.
contend that the Gaither Defendants' and the California
Defendants' affirmative defenses do not comply with
Federal Rules 8 and 9, because the defenses are “only
labels, ” and do not provide any substance, thereby
depriving Plaintiffs of fair notice of the factual basis for
the defenses. ECF 137 at-1 at 7. Under Federal Rule of Civil
Procedure 12(f), a “court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Federal Rule
8(b)(1) requires a party responding to a pleading to
“state in short and plain terms its defenses to each
claim asserted against it.” Federal Rule 9(b) requires
a party alleging fraud or mistake to “state with
particularity the circumstances constituting fraud or
mistake.” The Fourth Circuit has held that affirmative
defenses sounding in fraud or mistake are subject to Federal
Rule 9(b). See Bakery & Confectionary Union &
Indus. Int'l Pension Fund v. Just Born II, Inc., 888
F.3d 696, 704-05 (4th Cir. 2018).
argue that the Gaither Defendants' and the California
Defendants' affirmative defenses do not meet the pleading
requirements set forth in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662,
677-84, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and that
their fraud defenses do not comport with the specificity
required by Federal Rule 9(b). Twombly and
Iqbal provide the level of specificity required for
a plaintiff to meet Federal Rule 8(a)(2)'s requirement
that the pleading contain “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” See Fed. R. Civ. P. 8(a)(2);
Twombly, 550 U.S. at 555 (factual allegations must
be more than “labels or conclusions, ” and
“must be enough to raise a right to relief above the
speculative level”); Iqbal, 556 U.S. at 678-79
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
neither the Supreme Court nor the Fourth Circuit has ruled on
whether Twombly or Iqbal applies to
affirmative defenses, District Court judges in this district
have reached different conclusions. See Alston v.
Transunion, No. GJH-16-491, 2017 WL 464369, at *2 (D.
Md. Feb. 1, 2017) (comparing Lockheed Martin Corp. v.
United States, 973 F.Supp.2d 591, 595 (D. Md. 2013),
with Aguilar v. City Lights of China Rest., Inc.,
No. Civ.A DKC 11-2416, 2011 WL 5118325, at *4 (D. Md. Oct.
24, 2011)). One judge in this district has declined to apply
the heightened pleading standard to affirmative defenses
because of the “unfairness of holding defendants to as
stringent a standard as plaintiffs, who have significantly
more time to draft their complaint…”
Id. (citing LBCMT 2007-C3 Urbana Pike, LLC v.
Sheppard, 302 F.R.D. 385, 387-88 (D. Md. 2014);
Lockheed Martin Corp., 973 F.Supp.2d at 594).
However, this Court, along with the majority of judges in
this district, has held that the heightened pleading standard
of Twombly and Iqbal applies to affirmative
defenses, because “‘it would be incongruous and
unfair to require a plaintiff to operate under one standard
and to permit the defendant to operate under a different,
less stringent standard.'” Id. at *3
(quoting Topline Sols., Inc. v. Sandler Sys., Inc.,
No. L-09-3102, 2010 WL 299S836, at *1 (D. Md. July 27,
2010)); see also Topline Sols., Inc. v. Sandler Sys.,
Inc., Civil Action No. ELH-09-3102, 2017 WL 1862445, at
*38-39 (D. Md. May 8, 2017) (collecting cases where the
judges in this district applied the heightened pleading
standard to affirmative defenses); Blind Indus. &
Servs. of Maryland v. Route 40 Paintball Park, No.
WMN-11-3562, 2012 WL 2946688, at *3 (D. Md. July 17, 2012)
Gaither Defendants' and the California Defendants'
affirmative defenses do not meet the heightened standard of
pleading required by Twombly and Iqbal
because they are mere “labels or conclusions.”
See ECF 126 at 36-37; ECF 136 at 31-32. As a result,
the Gaither Defendants and the California Defendants must
provide sufficient factual support to “ensure that
[Plaintiffs] receive fair notice of the factual
basis” for the assertion of each affirmative defense.
Haley Paint Co. v. E.I. Du Pont de Nemours and Co.,
279 F.R.D. 331 (D. Md. 2012). The pleading standard requires
that the “non-conclusory factual content and the
reasonable inferences from that content, must plausibly
suggest a cognizable defense available to the
defendant.” Id. (citing Ulyssix Techs.,
Inc. v. Orbital Network Engineering, Inc., No.
ELH-10-2091, 2011 WL 631145, at *15 (D. Md. Feb. 11, 2011)).
“striking a portion of a pleading is a drastic remedy,
” the Court will grant the Gaither Defendants and the
California Defendants leave to amend their Answers, including
only those affirmative defenses for which they can provide
factual support sufficient to meet the standards laid out in
Twombly and Iqbal, or, for affirmative
defenses sounding in fraud, the specificity required by
Federal Rule of Civil Procedure 9(b). See Waste Mgmt.
Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.
2001); Alston, 2017 WL 464369, at *4.