Turner v. Ralkey

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA VICTOR JULIAN TURNER, CASE NO. 3:20-CV-5472-BHS-DWC 11 Plaintiff, ORDER 12 v. TORI TALKEY, et al., 14 Defendants.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff’s Motion to Strike Defendants’ Amended Affirmative Defense (hereinafter “Motion”). Dkt. 33.

Defendants filed their Original Answer to the Complaint on August 17, 2020, listing three affirmative defenses. Dkt. 27. On September 8, 2020, Defendants filed an Amended Answer. Dkt. 31. The Court denied Plaintiff’s first Motion to Strike as moot based on the filing of the Amended Answer. See Dkt. 29, 35. Plaintiff now moves for the Court to strike Defendants’ affirmative defense in the Amended Answer, which is a statement “Defendants reserve their right to raise additional affirmative defenses after the completion of discovery.”

1 Dkt. 31 at 5. Plaintiff alleges this puts Plaintiff at a tactical disadvantage because Plaintiff is not informed of the affirmative defenses Defendants may raise. Dkt. 33 at 2.

3 Defendants are required to “affirmatively state any avoidance or affirmative defenses.”

4 Fed. R. Civ. P. 8(c)(1). Rule 12(f) of the Federal Rules of Civil Procedure allows a district court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).

7 Here, Plaintiff seeks to strike a reservation to add affirmative defenses. Dkt. 33. This is not, by definition, an affirmative defense of the allegations in the Complaint, but rather, is a reservation of the right to assert additional affirmative defenses after discovery. See E.E.O.C. v. Timeless Investments, Inc., 734 F.Supp.2d 1035, 1055 (E.D. Cal. 2010) ( “a ‘reservation of affirmative defenses’ is not an affirmative defense[]”). Moreover, “if evidence later discovered gives rise to additional defenses, the proper procedure to add such defenses would be to move the Court to amend the Answer.” F.T.C. v. Stefanchik, 2004 WL 5495267, at *3 (W.D. Wash. Nov. 12, 2004); Solis v. Zenith Capital, LLC, 2009 WL 1324051 (N.D. Cal. May 8, 2009) (The appropriate procedural mechanism for supplementing or amending an answer is laid out in the Federal Rules of Civil Procedure, and “Defendant[ ] cannot avoid the requirement of Rule 15 simply by ‘reserving’ the right to amend or supplement their affirmative defenses.”).

1 Accordingly, the Court grants Plaintiff’s Motion (Dkt. 33) and strikes the reservation to add affirmative defenses. See Bushbeck v. Chicago Title Ins. Co., 2010 WL 11442904, at *6 (W.D. Wash. Aug. 26, 2010) (striking reservation to add affirmative defenses and noting the proper mechanism would be to amend the answer at a later date); Stefanchik, 2004 WL 5495267 at *3 (same).

6 Dated this 21st day of October, 2020.

A 8 David W. Christel United States Magistrate Judge