United States District Court, D. Colorado
ALLEN N. QUICK, Plaintiff,
GRAND JUNCTION LODGING LLC, d/b/a Holiday Inn Express and Suites Hotel, a South Dakota corporation, Defendant.
R. BROOKE JACKSON, District Judge.
This matter is before the Court on Plaintiff Quick's Motion for Partial Summary Judgment on Defendant's Designation of Non-Parties at Fault and Certain Affirmative Defenses [ECF No. 23]. Defendant recently withdrew its designations of non-parties at fault, and thus the motion is moot to the extent it asks the Court to strike those designations. See ECF No. 32. The present order is therefore limited to consideration of plaintiff's request that the Court strike certain affirmative defenses in defendant's Answer [ECF No. 9]. For the reasons laid out below, the motion is granted.
The plaintiff, Allen Quick, alleges that he tripped over a glass-topped table in a poorly lit area in Defendant Grand Junction Lodging LLC's ("Grand Junction") hotel, the Holiday Inn Express in Grand Junction, Colorado. ECF No. 1 at ¶¶ 1, 3. While staying at the hotel, Mr. Quick was allegedly following a sign indicating the direction of the pool when he encountered the table. Id. at ¶ 9. According to plaintiff, the "inadequate lighting, bold pattern of the carpet, and transparency of the glass-topped table worked in harmony to effectively camouflage the table to Mr. Quick, or any reasonable guest, who would not expect such an obstacle in the designated path to the pool." Id. at ¶ 15. As a result of this incident, Mr. Quick allegedly suffered serious injuries. Id. at ¶ 1. His complaint asserts a claim as an "invitee" under Colorado's Premises Liability Act. Id. at 6-7.
A. Standard of Review.
Plaintiff moves to strike a number of defendant's affirmative defenses under Federal Rule of Civil Procedure 12(f), which holds that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Motions to strike are a severe remedy, and as such are generally disfavored." Sender v. Mann, 423 F.Supp.2d 1155, 1163 (D. Colo. 2006). Although the motion is labeled "Motion for Partial Summary Judgment, " the portion addressing affirmative defenses is styled as a Rule 12(f) motion. See ECF No. 23 at 3, 11. Indeed, even when a motion "is presented as a motion for summary judgment under Rule 56, to the extent that it seeks to strike a pleading, it is more appropriately construed as a Rule 12(f) motion to strike" because an affirmative defense is a pleading under Federal Rule of Civil Procedure 8(a). Sender, 423 F.Supp.2d at 1163. This procedural set-up raises the question of whether, in determining if a defense is "insufficient, " the Court should consider evidence presented by the parties - or lack thereof - or instead rule on the basis of the pleadings alone.
When determining whether to strike an affirmative defense as insufficient, "the Court must strike the defense only if it cannot be maintained under any set of circumstances." S.E.C. v. Nacchio, 438 F.Supp.2d 1266, 1287 (D. Colo. 2006). In applying this standard, courts generally do not consider whether a defendant has presented evidence in support of a particular defense, but instead decide the motion on the basis of the pleadings alone. See, e.g., Dixie Yarns, Inc. v. Forman, No. 91 CIV. 6449 (CSH), 1993 WL 227661, at *4 (S.D.N.Y. June 21, 1993); Tonka Corp. v. Rose Art Indus., Inc., 836 F.Supp. 200, 218 (D.N.J. 1993). As the Southern District of New York has explained, "[t]he [Rule 12(f)] motion is not favored and will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense." Dixie Yarns, Inc. No. 91 CIV. 6449 (CSH), 1993 WL 227661, at *4.
In certain circumstances, however, courts will consider the sufficiency of the evidence in ruling on a motion to strike:
Unlike a Rule 12(b)(6) motion, there is no comparable provision for "converting" a 12(f) motion to strike an insufficient defense into a Rule 56 motion for summary judgment. However, several commentators suggest that, if matters outside the pleadings are presented and considered, especially those testing the legal sufficiency of a defense, a Rule 12(f) motion can be transformed into a motion testing the factual and evidentiary, as well as the legal, basis for the challenged pleading and would serve much the same function as a motion for summary judgment. Although some courts conclude that matters outside the pleadings should never be considered when ruling on a motion to strike, other courts have done so in the course of "converting" a 12(f) motion into one for partial summary judgment. We believe that this is the better approach...
Marco Holding Co. v. Lear Siegler, Inc., 606 F.Supp. 204, 213 (N.D. Ill. 1985) (internal citations and quotations omitted). Thus case law provides support for an approach that considers the sufficiency of the evidence in this context. Courts generally embrace this approach when both parties have submitted evidence outside the pleadings in connection with a motion to strike. See, e.g., Liberty Mut. Ins. Co. v. Precision Valve Corp., 402 F.Supp.2d 481, 484 (S.D.N.Y. 2005) (examining motion under summary judgment standard because both parties referred to matters outside the pleadings in their filings); United States v. Manzo, 182 F.Supp.2d 385, 395 n.6 (D.N.J. 2000) (same). See also Sender, 423 F.Supp.2d at 1167 (finding that a defense "fail[ed]" where plaintiff argued it lacked evidentiary support and defendant did not cite any evidence supporting the defense).
In the present case, discovery has ended and both parties have cited to evidence in their filings (indeed, the motion is labeled "Motion for Partial Summary Judgment"). The plaintiff argues that several of the affirmative defenses in defendant's answer lack any evidentiary support. See ECF No. 23 at 11-16. Defendant, in turn, cites to deposition testimony in its argument that the Court should not strike the challenged defenses. See ECF No. 24 at 10. Thus both parties discuss matters beyond the pleadings in the portions of their filings addressing affirmative defenses. Following the Marco Holding approach discussed above, the Court will accordingly consider the evidentiary record in ruling on the sufficiency of the affirmative defenses challenged by plaintiff.
In doing so, the Court looks to the standard applied in considering a summary judgment motion. "Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir. 2008) (quoting Fed.R.Civ.P. 56(c)). When deciding a motion for summary judgment, the Court considers "the factual record, together with all reasonable inferences derived therefrom, in the light most favorable to the non-moving party...." Id. When the movant does not have the ultimate burden at trial, it may succeed on a motion for summary judgment if it has shown the court that there is an absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In challenging such a showing, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To summarize, Rule 12(f) allows the Court to strike a defense as insufficient, redundant, immaterial, impertinent, or scandalous. In determining if the defenses challenged by plaintiff here are insufficient, the Court will consider both legal ...