Brito v. TCIP LLC

          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 ...