PATRICIA D. BARKSDALE United States Magistrate Judge

Order Denying Plaintiff's Motion to Strike Defendants' Answer and Affirmative Defenses

The plaintiff, proceeding without a lawyer, has sued the defendants for alleged civil-rights and other violations stemming from their enforcement of a child-support order against him. Doc. 12. They filed an answer and affirmative defenses to the amended complaint, Doc. 15, as well as two motions to dismiss, Docs. 14, 23. The Court granted their motion to dismiss his 42 U.S.C. § 1986 claim, Doc. 34, but denied without prejudice their res-judicata-based motion to dismiss or for summary judgment on the rest of his claims, Doc. 35. Now before the Court is the plaintiff's motion to strike the defendants' answer and affirmative defenses, Doc. 20, and their response opposing the motion, Doc. 23.

Federal Rule of Civil Procedure 12(f) allows a court to strike from a pleading any "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." But a court usually will not strike something from a pleading unless it does not have any possible connection to the controversy and might prejudice a party if it remains. Assa Compania De Seguros, S.A. v. Codotrans, Inc., No. 13-23563-CIV, 2014 WL 1515239, at *3 (S.D. Fla. Apr. 18, 2014) (to be published). Given that stringent standard and the drastic nature of altering a pleading, courts generally disfavor motions to strike and deem most of them to be time wasters. 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1380 (3d ed. 2004).

The plaintiff argues that the Court should strike all answer paragraphs that are not exclusively one of the responses that Federal Rule of Civil Procedure 8(b) permits: admissions, denials, or statements that the defendants lack knowledge or information sufficient to form a belief about the truth of an allegation. Doc. 20 at 4. Although the plaintiff correctly observes that many of the answer paragraphs include outmoded responses like demands for strict proof and statements that the allegations speak for themselves, the Court declines to strike the paragraphs on that ground because he has not shown how the surplusage prejudices him or otherwise affects the case. Without either, striking them in their entirety would be disproportionate to the transgression, striking them in part would be pointless, and ordering their elimination through amendment would be wasteful.

The plaintiff argues that the Court should strike as conclusory and redundant the defendants' twice-made reservation of a right to amend their affirmative defenses. Doc. 20 at 5, 11. A party's ability to amend its affirmative defenses is governed by the scheduling order required by Federal Rule of Civil Procedure 16(b), the timing rules of Federal Rules of Civil Procedure 12(b), and the amendment rules of Federal Rule of Civil Procedure 15(a) through (d). Accordingly, a party's reservation of a right to amend its affirmative defenses is a purposeless carryover from pre-rule practice. But likewise purposeless is striking a reservation-of-rights paragraph; accordingly, the Court declines to do so here.

The plaintiff argues that the Court should strike defense paragraphs asserting that he has failed to state a claim upon which relief can be granted because that is not an affirmative defense. Doc. 20 at 5-6. Federal Rule of Civil Procedure 12(h)(2) allows a party to raise the failure-to-state-a-claim defense in any pleading that Federal Rule of Civil Procedure 7(a) allows, which includes an answer to a complaint. Given those rules and the harmlessness of any mistaken designation of the defense as an affirmative one, the Court declines to strike those paragraphs.

The plaintiff argues that the Court should strike defense paragraphs that do not include supporting factual allegations. Doc. 20 at 4-7. Federal Rule of Civil Procedure 8 sets forth the general rules of pleading. Under its claim provision, a pleading that states a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under its response provision, a response to a pleading must "state in short and plain terms [the] defenses to each claim asserted against" the responding party. Fed. R. Civ. P. 8(b)(1). And under its affirmative-defense provision, a response to a pleading must "affirmatively state any avoidance or affirmative defenses." Fed. R. Civ. P. 8(c)(1).

In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007), the Supreme Court, addressing only Rule 8's claim provision, held that a party seeking relief must plead sufficient factual allegations to show that its claim is plausible on its face. Since those decisions, district courts in this and other circuits are split on whether that more stringent pleading standard extends to affirmative defenses. No circuit court has addressed the issue.

Courts extending the Iqbal-Twombly standard to affirmative defenses typically do so for three reasons. First, fairness and historical practice dictate that the same standard should apply to both sides alike. Second, similar language calls for similar interpretations. Third, the primary policy behind the Iqbal-Twombly standard (weeding out frivolous claims early) applies equally to affirmative defenses.

Courts refusing to extend the Iqbal-Twombly standard to affirmative defenses typically do so for two reasons. First, the text of Rule 8 does not support the extension. Whereas its pleading provision uses, "showing," its response and affirmative-defense provisions use, "state," and Iqbal's and Twombly's analyses relied on "showing." Second, the 21-day response period is insufficient time to gather information necessary to include supporting factual allegations.

The former approach is now the minority approach. Note, An Implausible Standard for Affirmative Defenses, 112 Mich. L. Rev. 275, 285 (2013). Persuaded by the latter approach and its fidelity to both the rule that a court must give effect to a law that has plain and unambiguous meaning, see United States v. Silva, 443 F.3d 795, 797-798 (11th Cir. 2006), and the longstanding adversity to striking an affirmative defense unless it does not have any possible connection to the controversy and might prejudice a party if it remains (an adversity left untouched by Iqbal and Twombly), the Court applies that approach here and declines to strike the defendants' defense paragraphs on the ground that they do not include supporting factual allegations.

The plaintiff argues that the Court should strike a defense paragraph contending that he had been negligent in performing his child-support obligations. Doc. 20 at 10-11. In addition to observing that the paragraph does not include factual details, he contends that the assertion is scandalous, impugns his moral character, and casts him in a "cruelly derogatory light." Doc. 20 at 10-11. Federal Rule of Civil Procedure 11(b)(3) requires a factual contention in a pleading to have evidentiary support. At least at this point in the case, the plaintiff has not demonstrated that the defendants' contention lacks evidentiary support or otherwise has no possible connection to the controversy. Furthermore, his public response to the contention eliminates or substantially lessens any harm to his reputation. The Court therefore declines to strike that paragraph.

Finally, the plaintiff argues that the Court should strike defense paragraphs claiming immunity, estoppel, waiver, and laches. Doc. 20 at 6-9. Because discovery may render one or more of those defenses pertinent, and because the plaintiff has not shown that their presence in the answer and affirmative defenses prejudices him (and no prejudice is apparent), the Court declines to strike those paragraphs.

Conclusion

Thus, the Court denies the plaintiff's motion to strike the defendants' answer and affirmative defenses, Doc. 20.

Ordered in Jacksonville, Florida, on May 6, 2014.

/s/_________

PATRICIA D. BARKSDALE

United States Magistrate Judge c: Counsel of Record

Andrew P. Moore, II

463 Bentwood Lane

Orange Park, Florida 32073