Hayden v. United States, Case No. 3:14–cv–1060–AC.

• Decision Date: 26 January 2015
• Docket Number: Case No. 3:14–cv–1060–AC.
• Citation: 147 F.Supp.3d 1125
• Parties: Paul M. HAYDEN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Oregon

147 F.Supp.3d 1125

Paul M. HAYDEN, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 3:14–cv–1060–AC.

United States District Court, D. Oregon.

Signed Jan. 26, 2015.

Arthur C. Johnson, Jennifer J. Middleton, Johnson Johnson Larson & Schaller, PC, Eugene, OR, for Plaintiff.

Kevin C. Danielson, Janice E. Hebert, U.S. Attorney's Office, Portland, OR, for Defendant.

ORDER

MICHAEL H. SIMON

, District Judge.

United States Magistrate Judge John V. Acosta issued a Findings and Recommendation in this case on December 16, 2014. Dkt. 18. Judge Acosta recommended that Plaintiff's Motion to Strike (Dkt. 13) be granted in part and denied in part. No party has filed objections.

Under the Federal Magistrates Act (“Act”), the court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C)

. If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

If no party objects, however, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)

(“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”). Nor does the Act “preclude further review by the district judge[ ] sua sponte ... under a de novo or any other standard.” Thomas, 474 U.S. at 154, 106 S.Ct. 466. And the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed,” the court review the magistrate's findings and recommendations for “clear error on the face of the record.”

As no party has made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge Acosta's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Acosta's Findings and Recommendation, Dkt. 18. Plaintiff's Motion to Strike (Dkt. 13) is GRANTED in part and DENIED in part. The United States' Third and Fifth Affirmative Defenses are STRUCK with leave to replead.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

ACOSTA

, United States Magistrate Judge:

Pending Motion

Paul Hayden (“Hayden”) filed a Complaint against the United States under the Federal Tort Claims Act (“FTCA”) for medical negligence arising from the care he received at the Portland Veteran's Administration Medical Center. Hayden seeks monetary relief, including an award of costs and fees. In its Answer, the United States asserted ten affirmative defenses to Hayden's claims.

Pursuant to Rules 8

and 12(f) of the Federal Rules of Civil Procedure, Hayden filed a Motion to Strike all ten of the government's affirmative defenses. In its Opposition, the United States agreed to withdraw all but three of its affirmative defenses. Oral argument was heard and, for the reasons set forth below, Hayden's Motion to Strike is granted, in part, and denied, in part.

Legal Standard

An answer must “state in short and plain terms” the defenses to each claim asserted against defendant in order to provide plaintiffs with fair notice of the defense(s), Fed.R.Civ.P. 8(b)(1)(A)

. Under Federal Rule of Civil Procedure 8(c), an “affirmative defense is a defense that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all of the elements of the plaintiffs claim are proven.” Barnes v. AT & T Pension Benefit Plan–Nonbargained Program, 718 F.Supp.2d 1167, 1171–72 (N.D.Cal.2010) (citation and quotations omitted). An insufficiently pleaded defense fails to comply with Rule 8 pleading requirements by not providing “plaintiff [with] fair notice of the nature of the defense” and the grounds upon which it rests. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir.1979)

Rule 12(f)

provides that a court may, on its own or on a motion, “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). A defense may be insufficient “as a matter of pleading or as a matter of substance.” Security People, Inc. v. Classic Woodworking, LLC, No. C–04–3133 MMC, 2005 WL 645592, at *1 (N.D.Cal. Mar. 4, 2005). “A showing of prejudice is not required to strike an ‘insufficient’ portion of the pleading as opposed to ‘redundant, immaterial, impertinent, or scandalous matter’ under Rule 12(f).” Bottoni v. Sallie Mae, Inc., No. C 10–03602 LB, 2011 WL 3678878, at *2 (N.D.Cal. Aug. 22, 2011).

Discussion

The United States asserts three affirmative defenses:

THIRD AFFIRMATIVE DEFENSE

If Plaintiff sustained damages by reason of the matters alleged in the Complaint, which is denied, then those damages were caused in whole or in part by the acts of the Plaintiff, or third parties and were not caused or contributed to in any manner by any fault or negligence of the Defendant, its officers, agents, servants, employees, or others acting within the scope of their office and for whom the United States bears responsibility.

FIFTH AFFIRMATIVE DEFENSE

Alternatively, or in addition, if the Plaintiff establishes any basis for liability against the United States, the Plaintiff was comparatively negligent.

NINTH AFFIRMATIVE DEFENSE

In the event that judgment is recovered herein against the United States, said judgment shall be reduced pursuant to applicable laws, by those amounts which have been, or will, with reasonable certainty, be reimbursed or indemnified, in whole or in part, from any collateral source and shall be offset against any amounts owed or reimbursable to the United States. Defendant is entitled to any offset or credit for any and all benefits paid or payable to or for plaintiff for the injuries, damages or losses which payment was made by the defendant United States or funded by the defendant through a state, county or city government or other governmental entity.

(Answer 8–10.) Hayden challenges all three affirmative defenses on the same grounds; namely, the defenses fail to allege sufficient facts to give notice of the ground for the defense, and it is merely a legal conclusion. (Pl.'s Mot. Strike 3–5.)

While Hayden does not challenge the United States' affirmative defenses for failure to comply with the pleading standards set forth by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), effectively, his motion here is a challenge under Rule 12(b)(6). Indeed, Hayden's motion attacks each of the government's affirmative defenses on the basis the defense states only legal conclusions and provides no notice of the basis for the defense. The question of whether Twombly and Iqbal apply to affirmative defenses still is an unsettled question in the Ninth Circuit. Nevertheless, for the reasons explained below, this court finds the principles set forth in Twombly and Iqbal are the appropriate standard to apply to a motion which challenges the factual sufficiency of a pleaded defense. Consequently, the court will treat Hayden's motion as one for failure to state a claim under Rule 12(b)(6).

The starting point is the language of Rule 8 of the Federal Rules of Civil Procedure

. Federal Rule of Civil Procedure 8 governs pleading whether by complaint or answer. Rule 8 is entitled “General Rules of Pleading,” which means its requirements apply to complaints and answers because both are “pleadings” as defined by Rule 7(a). Rule 8(a)(2) requires a “claim for relief” to contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). Rule 8(b)(2) further provides with respect to “denials” that they “must fairly respond to the substance of the allegations.” Rule 8(b)(1)(A) requires a party to “state in short and plain terms its defenses to each claim asserted against it [,]” the subsection making no distinction between defenses and affirmative defenses. Fed.R.Civ.P. 8(b)(1)(A). Rule 8(c) specifically addresses affirmative defenses and requires that a party “affirmatively state any avoidance or affirmative defense” in the responsive pleading. Fed.R.Civ.P. 8(c)(1). Under the meaning of Rule 8(c), an “affirmative defense is a defense that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all of the elements of the plaintiff's claim are proven.” Barnes, 718 F.Supp.2d at 1171–72 (quotations and citation omitted).

In pleading an affirmative defense, a defendant must comply with Rule 8

's requirement of a “short and plain” statement to give the opposing party fair notice of the defense and the grounds upon which it rests. Wyshak, 607 F.2d at 827

(“The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense,”); see also

Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649 (D.Kan.2009) (Rule 8 requires a “short and plain” statement so as to give the opposing party fair notice). Until recently, the “fair notice” requirement in Wyshak was “[t]he key to determining the sufficiency pleading an affirmative defense.” 607 F.2d at 827. Since the Supreme Court's decisions in Twombly and Iqbal requiring plausibility, courts have considered whether the fair-notice requirement still controls the pleading of affirmative defenses. In that regard, this court agrees with the analysis set forth in Vogel v. Huntington Oaks Delaware Partners, LLC:

Framing the issue as a choice between Twombly's plausibility standard and Wyshak's fair-notice standard is misleading, because Twombly merely revised the fair-notice standard on which Wyshak is based. In Wyshak, the Ninth Circuit adopted the prevailing fair-notice standard for pleading complaints and applied it to

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