United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs Motion to Strike
certain of Defendants' affirmative defenses (Doc. 17).
Plaintiff asserts that Defendants denied and/or excluded her
from educational programming because of sex discrimination,
sexual harassment, and/or sexual abuse in violation of Title
IX, 20 U.S.C. § 1681. See Doc. 9, at 2.
Plaintiff moves this Court pursuant to Fed.R.Civ.P. 12(f) to
strike six affirmative defenses from Defendants' answers,
see Docs. 14-15, because they are legally
inapplicable and/or fail to comply with the pleading standard
set forth in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009). Specifically, Plaintiff moves to strike the following
• Defendants “are entitled to sovereign immunity
from suit.” Doc. 14, at 3, ¶ 2; Doc. 15, at 4,
• Defendants “are entitled to Eleventh Amendment
immunity.” Doc. 14, at 4, ¶ 3; Doc. 15, at 4,
• “Plaintiff failed to exhaust all administrative
remedies.” Doc. 14, at 4, ¶ 7; Doc. 15, at 4,
• “Plaintiff consented to the complained of
conduct . . . .” Doc. 14, at 4, ¶ 5; Doc. 15, at
4, ¶ 6.
• “Plaintiff caused or contributed to the alleged
injuries and damages by Plaintiffs own behavior.” Doc.
14, at 4, ¶ 6; Doc. 15, at 4, ¶ 7.
• “Plaintiffs claims are limited or otherwise
barred by the Governmental Tort Claims Act
(“GTCA”) of the State of Oklahoma.” Doc.
14, at 4, ¶ 10; Doc. 15, at 4, ¶ 11.
See Doc. 17, at 2-3. Defendants object to Plaintiffs
motion, arguing that Plaintiff has not shown prejudice or
lack of notice by the inclusion of the affirmative defenses
as pled, that the pleading sufficiency standards applicable
to complaints do not apply to answers, and that the
affirmative defenses are, in fact, sufficiently pled. See
generally Doc. 18.
motion to strike, “[t]he court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). The motion's purpose is to
“save the time and money that would be spent litigating
issues that will not affect the outcome of the case.”
Lofton v. FTS Int'l Mfg., LLC, No. CIV-17-242,
2017 WL 3741982, at *5 (W.D. Okla. Aug. 30, 2017) (internal
quotation marks and citation omitted). “[M]otions to
strike are generally a disfavored, drastic remedy and are
rarely granted.” Knighten v. Allstate Ins.
Co., No. CIV-17-683-D, 2018 WL 718533, at *2 W.D. Okla.
Feb. 5, 2018) (citing United States v. Hardage, 116
F.R.D. 460, 463-64 (W.D. Okla. 1987)); see also Tavasci
v. Cambron, No. CIV-16-0461 JB/LF, 2016 WL 6405896, at
*7 (D.N.M. Oct. 25, 2016) (noting that motions to strike
“tend to be busywork, and crowd the docket”
(internal quotation marks and citation omitted)); Lane v.
Page, 272 F.R.D. 581, 587, 599 (D.N.M. 2011) (citing
courts that describe the motion to strike as “a
dilatory tactic, ” “purely cosmetic, ” and
a “time waster” (internal quotation marks and
citations omitted)). Moreover, the Court “possesses
considerable discretion in disposing of a Rule 12(f) motion
to strike . . . .” SFF-TIR, LLC v. Stephenson,
250 F.Supp. 3D 856, 978 (N.D. Okla. 2017) (internal quotation
marks and citation omitted).
to Defendant's argument, this Court determined in 2009
that Twombly (and, by extension, Iqbal)
applies to affirmative defenses. In Gibson v. OfficeMax,
Inc., the Court concluded that
[u]nless and until the Tenth Circuit holds otherwise, this
Court holds that affirmative defenses other than the failure
to mitigate damages are subject to the pleading requirements
of [Fed. R. Civ. P.] 8 . . . and Bell Atlantic Corp. v.
Twombly . . . . Thus, unless the factual basis for an
affirmative defense is clear from the face of the complaint,
e.g., where the claim asserted is clearly barred by
the statute of limitations, in which case the mere statement
that the claim is barred by that statute is sufficient, a
defendant must allege a sufficient factual basis or bases for
his or its affirmative defense to show that the defense is
plausibly viable on its face or sufficient factual matter
from which a court can infer potential viability.
See Gibson v. Office Max, Inc., No. CIV-08-1289-R,
at 2 (W.D. Okla. Jan. 30, 2009). The Court will not revisit
its prior decision today-though it acknowledges that judges
in this district court have disagreed on whether
Twombly and Iqbal apply to affirmative
of whether Defendants have pled sufficient factual matter in
their answers, the Court strikes several of Defendants'
affirmative defenses because they are legally inapposite, as
Plaintiff argues. First, an exhaustion defense is
inapplicable here, as “Title IX has no administrative
exhaustion requirement . . . .” Fitzgerald v.
Barnstable Sch. Comm., 555 U.S. 246, 255 (2009); see
also Cannon v. Univ. of Chicago, 441 U.S. 677, 706 n.41
(1979); Parker v. Franklin Cty. Cmty. Sch. Corp.,
667 F.3d 910, 919 (7th Cir. 2012) (“[C]laimants under
Title IX need not exhaust administrative remedies before
bringing suit directly in court.”). Second,
Defendants' immunity-based defenses are stricken because
Congress has explicitly waived sovereign immunity for Title
IX claims. See 42 U.S.C. § 2000d-7(a)(1)
(“A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit
in Federal court for a violation of . . . title IX of the
Education Amendments of 1972 . . . .”); Sossamon v.
Texas, 563 U.S. 277, 291 (2011) (“42 U.S.C. §
2000d-7 . . . . expressly waives state sovereign immunity for
violations of . . . title IX . . . .” (internal
quotation marks and citation omitted)); Arbogast v. Kan.
Dep't of Labor, 789 F.3d 1174, 1182 (10th Cir. 2015)
(“[E]very circuit court to consider the issue . . . has
concluded that by accepting federal financial assistance as
specified in 42 U.S.C. § 2000d-7, states and state
entities waive sovereign immunity from suit.” (internal
quotation marks and citations omitted)); see also
Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 72-73
(1992); Doe v. Univ. of Colo. ex rel. Bd. of Regents of
Univ. of Colo., 255 F.Supp.3d 1064, 1081 (D. Colo.
2017). Moreover, ...