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Bors v. State ex rel. Board of Regents For Regional University System of Oklahoma

United States District Court, W.D. Oklahoma

March 13, 2019




         This 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 defenses:

• Defendants “are entitled to sovereign immunity from suit.” Doc. 14, at 3, ¶ 2; Doc. 15, at 4, ¶ 3.
• Defendants “are entitled to Eleventh Amendment immunity.” Doc. 14, at 4, ¶ 3; Doc. 15, at 4, ¶ 4.
• “Plaintiff failed to exhaust all administrative remedies.” Doc. 14, at 4, ¶ 7; Doc. 15, at 4, ¶ 8.
• “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.

         In a 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).

         Contrary 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 defenses.[1]

         Irrespective 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, ...

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