Horn v. Jones

UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA JOHN WESLEY HORN, CASE NO. 21-5244 RJB - TLF Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION GREGORY JONES, 12 Defendant.

14 This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge Theresa L. Fricke. Dkt. 25. The Court has considered the Report and Recommendation and the remaining record.

17 The Report and Recommendation (Dkt. 25) should be adopted. No objections were filed.

18 For the reasons stated in the Report and Recommendation, the Plaintiff’s motion to strike is granted, in part, and denied, in part. The Defendant’s first affirmative defense, failure to state a claim, should be stricken. Affirmative defenses must give “fair notice” to plaintiffs of the nature of the defense, which requires “describing the defense in ‘general terms.’” Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (2015). The Defendant’s claim, that the Plaintiff failed to state a claim, is premised on the facts alleged (or not alleged) in the Plaintiff’s complaint, Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), and not on facts asserted in the Defendant’s Amended Answer. A defense which demonstrates that a plaintiff has not met its burden is not an affirmative defense. Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). The order striking Defendant’s first affirmative defense should be without prejudice to raise the issue of failure to state a claim under Fed. R. Civ. P. 12(h)(2).

6 The Plaintiff’s motion to strike the remaining affirmative defenses should be denied. The case should be re-referred to Judge Fricke for further proceedings consistent with this opinion.

8 It is ORDERED that: 9  The Report and Recommendation (Dkt. 25) IS ADOPTED; 10  The Plaintiff’s motion to strike (Dkt. 15) IS GRANTED, IN PART and 11 DENIED, IN PART; 12 o The Defendant’s first affirmative defense, for failure to state a claim, IS 13 STRICKEN, without prejudice to raise the issue of failure to state a claim 14 under Fed. R. Civ. P. 12(h)(2); and 15  The case IS RE-REFERRED to Judge Fricke for further proceedings consistent 16 with this opinion.

17 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address.

19 Dated this 4th day of January, 2022.

20 A 22 ROBERT J. BRYAN United States District Judge