United States District Court, D. Colorado
MEGAN MCFADDEN, LONNIE WHITE, and ANTONIO “A.J.” WHITE, Plaintiffs,
MEEKER HOUSING AUTHORITY, a Property Management Company, MELINDA PARKER, MICHELLE BUCKLER, EDY GEORGE, and, STACIE KINCHER, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS' MOTION TO STRIKE AFFIRMATIVE DEFENSES AND
WILLIAM J. MARTJIEZ UNITED STATES DISTRICT JUDGE
Megan McFadden (“McFadden”) previously resided in
the federally subsidized Karen Court apartment complex in
Meeker, Colorado. Plaintiffs Lonnie and A.J. White
(“the Whites”) are current residents of Karen
Court. All Plaintiffs claim that Defendants discriminated
against them in violation of the Rehabilitation Act of 1973
(“Rehabilitation Act”), 29 U.S.C. §§
794 et seq., and the Fair Housing Act
(“FHA”), 42 U.S.C. §§ 3601 et
seq., based on Defendants' policy (or former policy)
concerning disability-assistance pets. McFadden, who moved
from Karen Court around the time this lawsuit commenced, also
brings a claim under Colorado state law for wrongful
withholding of her security deposit.
the Court is Plaintiffs' Motion to Dismiss and to Strike
Allegations, Affirmative Defenses, and Counterclaims
(“Motion”). (ECF No. 260.) The Motion attacks
Defendants' Answer to Second Amended Complaint,
Counterclaim Against Plaintiff Megan McFadden, Counterclaim
Against Lonnie and A.J. White, and Jury Demand (“Second
Amended Answer”). (ECF No. 253.) Plaintiffs argue that
the entire Second Amended Answer must be stricken for failure
to obtain leave to include certain new allegations within it.
Plaintiffs alternatively claim that the new allegations fail
on their merits.
reasons explained below, the Court grants the Motion in part
and denies it in part.
claim that the Second Amended Answer “contains four new
affirmative defenses, fifteen new general allegations, and
two new counterclaims [against the Whites], ” along
with “minor but substantive changes to the allegations
raised against Ms. McFadden.” (ECF No. 260 at 2
(footnote omitted).) Plaintiffs argue that the Court must
strike these new portions of the Second Amended Answer
because Defendants did not obtain leave to file them.
(Id. at 2-4.) Plaintiffs claim that Defendants'
failure to obtain leave is all the more striking because the
Court previously admonished Defendants for filing an earlier
amended answer that added claims and allegations the Court
had not authorized. (See ECF No. 243 at 3.)
is a significant difference between Defendants' earlier
answer and the Second Amended Answer. In the earlier
situation, there was no intervening amended complaint from
Plaintiffs. Defendants simply wanted to amend their answer,
ostensibly to remove certain affirmative defenses, and the
Court granted leave to do so. Defendants then removed the
affirmative defenses and pleaded new ones. Although
the Court agreed that the new affirmative defenses were
somewhat related to previously pleaded defenses, the Court
nonetheless found Defendants' conduct improper: “a
plaintiff may not unilaterally file an amended complaint to
elaborate on previously pleaded causes of action; and the
Court sees no reason why a defendant should not be held to
the same standard.” (Id.)
the Second Amended Answer, however, Defendants were not
amending of their own initiative. They were answering
Plaintiffs' newly filed Second Amended Complaint. (ECF
No. 237.) Plaintiffs-who fail to acknowledge this distinction
until their reply brief-apparently believe that a defendant,
when answering an amended complaint, must adhere strictly to
the previous answer save for responding to new material in
the amended complaint. (See ECF No. 289 at 3-6.)
Plaintiffs cite no authority for this proposition and the
Court is unwilling to hold as much, at least as a general
matter. Such a holding invites petty motion practice about
what material in the amended complaint and amended answer can
be considered truly “new.”
the Court rejects Plaintiffs' argument that the Second
Amended Answer must be stricken because Defendants did not
obtain leave to include the new material contained within it.
The Court thus turns to Plaintiffs arguments on the merits.
new counterclaims may be attacked under Federal Rule of Civil
Procedure 12(b)(6), which permits the Court to dismiss for
“failure to state a claim upon which relief can be
granted.” The Rule 12(b)(6) standard requires the Court
to “assume the truth of the [claimant's]
well-pleaded factual allegations and view them in the light
most favorable to the [claimant].” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). In ruling on such a motion, the dispositive inquiry is
“whether the complaint [or counterclaim] contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint [or counterclaim] may proceed
even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
new affirmative defenses may be attacked under Rule 12(f),
which permits a court to “strike from a pleading an
insufficient defense.” “An affirmative defense is
insufficient if, as a matter of law, the defense cannot
succeed under any circumstance.” FDIC v.
Isham, 782 F.Supp. 524, 530 (D. Colo. 1992).