United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Kathleen M. Tafoya, United States Magistrate Judge
This
matter comes before the court on Plaintiff's
“Motion to Strike Defendant China Gourmet Colorado
Spgs' Affirmative Defenses” (Doc. No. 23) and
Plaintiff's “Motion to Strike Defendant TCIP
LLC's Affirmative Defenses” (Doc. No. 24).
Defendants TCIP LLC and China Gourmet Colorado Spgs
(hereinafter “Defendants”) jointly filed a
Response on December 27, 2018. (Doc. No. 29.) Plaintiff
replied on January 3, 2019. (Doc. No. 32.)
BACKGROUND
On
September 19, 2018, Plaintiff Carlos Brito initiated this
action against Defendants TCIP LLC (“TCIP”) and
China Gourmet Colorado Spgs (“China Gourmet”).
(Doc. No. 1.) Brito, who is paraplegic and uses a wheelchair,
alleges that he encountered multiple violations of the
Americans with Disabilities Act (“ADA”) of 1990,
42 U.S.C. § 12182 et seq., that directly
affected his ability to use and enjoy a restaurant owned by
China Gourmet in a plaza owned by TCIP. (Id. at
¶¶ 6, 8, 13, 15.)
In his
complaint, Brito asserts a string of ADA violations. As to
TCIP, Brito asserts violations relating to plaza parking,
entrance access and path of travel, access to goods and
services, and public restrooms. As to China Gourmet, Brito
asserts violations related to access to goods and services,
in addition to the restaurant's public restrooms.
(Id. at ¶¶ 25-31.) Brito seeks all relief
available under the ADA, including injunctive relief and
attorney's fees and costs. (Id. at ¶ 32.)
Defendants separately answered Brito's complaint, denying
all factual allegations and raising the same sixteen
affirmative defenses. (Doc. Nos. 17, 18.) Brito then filed
the present motions to strike five of Defendants'
affirmative defenses. (Doc. Nos. 23, 24 at 2.)
LEGAL
STANDARDS
Rule
12(f) permits the Court to “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“An affirmative defense is insufficient if, as a matter
of law, the defense cannot succeed under any
circumstance.” Unger v. U.S. West, Inc., 889
F.Supp. 419, 422 (D.Colo.1995). “A defense should not
be stricken if there is any real doubt about its validity,
and the benefit of any doubt should be given to the
pleader.” Chavaria v. Peak Vista Comm. Health
Ctrs., No. 08-cv-01466-LTB-MJW, 2008 WL 4830792, at *1
(D. Colo. Nov. 5, 2008).
“The
purpose of Rule 12(f) is to save the time and money that
would be spent litigating issues that will not affect the
outcome of the case.” Kimpton Hotel & Rest.
Group, LLC v. Monaco Inn, Inc., No. 07-cv-01514-WDM,
2008 WL 140488, at *1 (D.Colo. Jan. 11, 2008) (citing
United States v. Shell Oil Co., 605 F.Supp. 1064, 1085
(D.Colo.1985)). Striking a portion of a pleading is a drastic
remedy; the federal courts generally view motions to strike
with disfavor and infrequently grant such requests. 5C Arthur
R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1380 (3d ed.2011). However, whether to strike an
affirmative defense rests within the discretion of the trial
court. Anderson v. Van Pelt, No. 09-cv-00704-CMA,
2010 WL 5071998, at * 1 (D.Colo. Dec. 7, 2010) (citing
Vanderhurst v. Colo. Mountain Coll. Dist., 16 F.Supp.2d
1297, 1303 (D.Colo. 1998)).
ANALYSIS
Plaintiff
requests that this court strike affirmative defense numbers
2, 7, 13, 14, 15. (Doc. Nos. 23, 24 at 2.) In response,
Defendants agree to withdraw affirmative defenses 2 and 7,
which pertain to the concept of good faith. (Doc. No. 29 at
2.) The court will address each of the remaining challenged
defenses in turn.
A.
Thirteenth Affirmative Defense: Unclean Hands
Defendants'
thirteenth affirmative defense asserts “Plaintiff may
have unclean hands, barring equitable remedies, or may have
an improper purpose in filing this action. Plaintiff's
claims are barred by the doctrine of unclean hands by reason
of Plaintiff's conduct and actions, and his pattern and
practice of visiting places of public accommodation without
the intent of accessing goods and services and instead with
the purpose of filing lawsuits, such as the current action,
and incurring damages. Thus, Plaintiff's primary motive
in filing this action may be the generation of damages,
attorneys' fees and expert witness payments.” (Doc.
Nos. 17, 18 at 8.) Plaintiff moves to strike this affirmative
defense by arguing Defendants pleaded conclusory allegations
rather than facts, and failed to plead the specific elements
of the defense. (Doc. Nos. 23, 24 at 3.) In response,
Defendants argue Plaintiff filed the present lawsuit with
unclean hands because he has filed numerous ADA lawsuits in
both Colorado and Florida without first complaining to the
subject properties about their inaccessibility and allowing
the owners to bring the properties into compliance without
incurring litigation costs. (Doc. No. 29 at 2.) According to
Defendants, “it is not reasonable that Mr. Brito would
not lodge a complaint if he faced architectural barriers to
accessibility.” (Id.) In reply, Plaintiff
contends Defendants avoid his argument that they inadequately
pleaded the unclean hands defense, and instead rely on
conclusory allegations relating to a string of ADA lawsuits
filed by Plaintiff. (Doc. No. 32 at 1- 2.) Plaintiff also
notes Defendants cite no authority suggesting Plaintiff had
an obligation to address complaints with property owners.
(Id. at 2.)
“The
doctrine of unclean hands prevents one who has engaged in
improper conduct regarding the subject matter of the cause of
action, to pursue the claim at issue.” Sender v.
Mann, 423 F.Supp.2d 1155, 1167 (D. Colo. 2006)
(quoting Salzman v. Bachrach, 996 P.2d 1263, 1270
(Colo. 2000). “It applies only to equitable
remedies.” Id. The defense of unclean hands
“must be pled with the specific elements required to
establish the defense.” Cartel Asset Mgmt. v. Ocwen
Fin. Corp., No. 01-cv-01644-REB-CBS, 2010 WL 3522409, at
*3 (D.Colo. Aug. 11, 2010) (citing MPC Containment Sys.,
Ltd. v. Moreland, No. 05 C 6973, 2008 WL 1775501, at *5
(N.D.Ill. April 17, 2008)). These elements include a showing
that the party seeking equitable relief is “(1) guilty
of conduct involving fraud, deceit, unconscionability, or bad
faith, (2) directly related to the matter at issue, (3) that
injures the other party, and (4) affects the balance of
equities between the litigants.” Id. (citing
In re New Valley Corp., 181 F.3d 517, 523 (3d Cir.
1999)).
In
asserting their unclean hands defense, Defendants do not
plead facts to show Plaintiff acted with fraud, deceit,
unconscionability, or bad faith. Defendants' argument
relies on Plaintiff filing various lawsuits without first
complaining to the subject properties, but the law does not
require Plaintiff to lodge such complaints. (Infra
5-6.) Moreover, Title III of the ADA specifically
contemplates the kind of lawsuits filed by Plaintiff, and
Defendants plead no facts to show Plaintiff's string of
lawsuits, including this one, were filed with unclean hands.
See John Ho v. Man Sin, No. SACV161975DOCKESX, 2018
WL 5906669, at *7 (C.D. Cal. Apr. 6, 2018) (rejecting the
defendant's argument that she was entitled to summary
judgment where the defendant's allegations of serial
litigation did not demonstrate unconscionability, bad faith
or inequitable conduct). Defendants do not cite any authority
for the proposition that filing numerous lawsuits under Title
III of the ADA evidences unclean hands, and the court notes
that such a holding would contradict the ability of private
individuals to file lawsuits where they encounter
inaccessible public accommodations. See Molski v.
Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir.
2007) (“For the ADA to yield its promise of equal
access for the disabled, it may indeed be necessary and
desirable for committed individuals to ...