Opinion
3:22-cv-00726-SB
12-22-2023
VINCENT D. BUTTERS, Plaintiff, v. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant.
FINDINGS AND RECOMMENDATION
STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff Vincent Butters' (“Butters”) motion for judgment on the pleading and to strike Defendant Travelers Indemnity Company's (“Travelers”) affirmative defenses. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1), but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge deny Butters' motion for judgment on the pleadings and to strike Travelers' affirmative defenses.
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In evaluating Butters' motion for judgment on the pleadings, the Court must look to and accept the well-pleaded allegations in Travelers' answer. See Or.-Wash. Plywood Co. v. Fed.Trade Comm'n, 194 F.2d 48, 50 (9th Cir. 1952) (observing that when the plaintiff “mov[es] for judgment on the pleadings, [the defendant's] denials and allegations of the answer which are well pleaded are to be taken as true” (citing Beal v. Miss. Pac. R.R. Corp., 312 U.S. 45, 51 (1941))); see also Nat'l Lifeline Ass'n v. Batjer, No. 21-15969, 2023 WL 1281676, at *2 & n.2 (9th Cir. Jan. 21, 2023) (explaining that “[b]ecause [the plaintiff] moved for judgment on the pleadings, th[e] court look[ed] to the allegations in the [d]efendants' pleadings, [i.e.,] their answer,” and pointing out what the defendants did “not deny” or “meaningfully dispute” in their answer).
The present action concerns a homeowner's policy (the “Policy”) that Travelers' “independent subsidiary,” The Travelers Home and Marine Insurance Company (“Travelers Home”), issued to Butters and his husband, Jeffrey Butters, and Butters' “allegations . . . of improper conduct during [Travelers'] investigation and adjustment of [Butters'] fire loss claim[.]” (Def's Answer Second Am. Compl. & Affirmative Defenses (“Def.'s Answer”) ¶¶ 2-4, 6, ECF No. 49.)
After timely removing Butters' case to federal court on diversity grounds, Travelers moved to dismiss Butters' original complaint. (See ECF Nos. 1, 5.) While Travelers' motion to dismiss was pending, Butters filed a first amended complaint, which the Court and parties later agreed to treat as the operative pleading and subject of Travelers' initial motion. See Butters v. Travelers Indem., Co., No. 3:22-cv-00726-SB, 2023 WL 3559472, at *1 n.1 (D. Or. May 18, 2023).
Not long thereafter, however, Butters moved for leave to file a second amended complaint. (See ECF Nos. 16, 22; see also ECF No. 22-1, attaching the second amended complaint as an exhibit). Travelers opposed Butters' motion for leave and cross-moved to dismiss. (ECF No. 26.) After unsuccessfully attempting to participate in a settlement conference with Butters (ECF No. 36), Travelers “agree[d] with the procedural approach of allowing Butters to file a Second Amended Complaint and then treating Travelers' substantive challenges as a motion to dismiss that pleading.” Butters, 2023 WL 3559472, at *1. Ultimately, the Court issued an Order granting in part Travelers' motion to dismiss Butters' second amended complaint, dismissing Butters' claims for intentional infliction of emotional distress and breach of contract, declining to dismiss Butters' claims for negligence per se and fraudulent misrepresentation by reckless disregard, and dismissing Butters' request for punitive damages based on his remaining claims. Id. at *7.
The Court also granted Butters' motion for leave to file his second amended complaint, see id. (“The Court GRANTS Plaintiff's motion for leave to amend. ECF 22.”), but Butters, who is representing himself, never docketed a standalone copy of his proposed second amended complaint, or a version of the second amended complaint that included only the claims that the Court declined to dismiss. See LR 15-1(c) (“On entry of an order granting the motion to amend, the moving party must file and serve a complete clean copy of the amended pleading within 10 days.”).
On May 31, 2023, about two weeks after the Court issued its Order, Travelers filed its answer to the second amended complaint that Butters attached as an exhibit to his motion for leave to amend (i.e., ECF No. 22-1) and eleven affirmative defenses. (See Def.'s Answer at 1-7.) Out of an abundance of “caution and [to] comply with [FED. R. CIV. P. 8], [Travelers'] answer . . . responded to all the allegations . . . in the proposed second amended complaint, including factual allegations embedded in the claims for relief that already were dismissed.” (Def.'s Resp. Opp'n Pl.'s Mot. J. Pleadings & Mot. Strike (“Def.'s Resp.”) at 3, ECF No. 58.) Butters' motion for judgment on the pleadings and to strike Travelers' affirmative defenses followed.
DISCUSSION
I. PRELIMINARY MATTER
Before addressing Butters' motion, the Court addresses Butters' failure to name the correct defendant.
A. Applicable Law
Courts have sua sponte corrected a defendant's name in the case caption. See Blizman v. Travelers Home & Marine Ins. Co., 557 F.Supp.3d 571, 574 n.1 (M.D. Pa. 2021) (“The record reflects that [Travelers Home] issued the Policy. . . Since it appears that the correct and intended entity was served and has been represented in these proceedings, the ‘misnomer' rule applies and [the] [p]laintiff's error is of no consequence.... The Court now sua sponte corrects that misnomer.”); Milliken v. Sturdevant, No. 18-cv-05326, 2020 WL 2512381, at *1 n.1 (N.D. Cal. May 15, 2020) (“The Court sua sponte corrects this defendant's name in the case caption.... The Clerk shall correct the docket.” (citing FED. R. CIV. P. 60(a))); see also Icho v. PacketSwitch.com, Inc., No. 01-cv-20858, 2010 WL 503039, at *6 (N.D. Cal. Feb. 5, 2010) (“If [the] [p]laintiffs had not filed their administrative motion to correct the spelling of [the defendant's] name, the Court could have made the correction sua sponte.”); Graves v. Gen. Ins.Corp., 412 F.2d 583, 584-85 (10th Cir. 1969) (noting that the correction of misnomers is permitted under Federal Rule of Civil Procedure 15(c), and describing an example where a Travelers parent and subsidiary had an identity of interest and the subsidiary's substitution did not result in prejudice).
Courts have also sua sponte substituted the correct defendant for the wrong one, and simply treated a self-represented litigant's action as filed against the correct defendant. See Abale Gnalega v. Wash. DC Veterans Med. Ctr., No. 18-cv-00514, 2018 WL 6433911, at *1 n.2 (D.D.C. Dec. 7, 2018) (“Though Plaintiff has named the wrong defendant, the court is required to construe pro se filings liberally and therefore treats this action as if filed against the United States.”); Adeyemi v. Jones, No. 04-cv-01684, 2005 WL 1017859, at *2 (D.D.C. Apr. 28, 2005) (“This pro se plaintiff's failure to name the proper defendant is not fatal, however. Pleadings filed by pro se litigants are construed liberally.... The Court will dismiss [the District of Columbia Public Schools's Equal Employment Opportunity Commission counselor] as a party defendant, and, sua sponte, will substitute the District of Columbia.”); Nee v. IndyMac Bank-F.S.B. Pasadena, No. 08-cv-06245, 2009 WL 10673275, at *2 (C.D. Cal. Feb. 17, 2009) (noting that the Federal Deposit Insurance Corporation (“FDIC”) was the “real party in interest,” not IndyMac Bank F.S.B.-Pasadena (“IFSB”), and therefore “sua sponte substitut[ing] the FDIC as the proper party defendant in place . . . of IFSB”); see also V.V. v. Meta Platforms, Inc., No. 2300284, 2023 WL 3613232, at *3 n.1 (D. Conn. May 24, 2023) (noting that “courts often sua sponte drop improperly named parties and add parties according to their proper name” (citing FED. R. CIV. P. 21)); Scarlett v. Nat'l Sci. Found. Off. of Inspector Gen., No. 22-00188, 2022 WL 17830227, at *6 n.5 (D.D.C. Dec. 21, 2022) (“Courts have declined to hold that pro se plaintiffs' failure to name the correct defendant is fatal, however, even substituting the correct defendant sua sponte.” (citing Abale Gnalega, 2018 WL 6433911, at *1 n.2 and Adeyemi, 2005 WL 1017859, at *2)).
B. Analysis
As Travelers and the Court previously noted, Butters, who is representing himself, named the wrong defendant (i.e., Travelers) in his complaints, as Travelers Home issued the Policy to Butters and his husband. (See Notice Removal ¶ 1 & n.1, ECF No. 1, identifying Travelers Home as the “real party in interest”; Answer ¶¶ 3-4, confirming that Travelers Home, “an independent subsidiary of defendant,” issued the Policy to Butters and his husband, both of whom were “purchasers of insurance” and “named insureds”); Butters v. Travelers Indem. Co., No. 3:22-cv-726-SB, 2023 WL 2988763, at *1 & n.2 (D. Or. Jan. 23, 2023) (noting that Travelers Home issued the Policy, quoting provisions, stating that Travelers did “not appear to object to the substitution of Travelers Home for ‘Travelers Indemnity Company,' and focuse[d] instead on the merits of [Butters'] claims,” and reflecting that the Court referred to the two Travelers “entities, interchangeably, as ‘Defendant'”), findings and recommendation adopted in part, 2023 WL 3559472, at *1-7.
Travelers is the sole owner of Travelers Home (Def.'s Corp. Disclosure Statement at 2, ECF No. 7), and Butters may have only served Travelers. (See Notice Removal ¶¶ 1-2; id. Ex. A at 16-19.) The record, however, reflects that the same counsel represents Travelers and Travelers Home, that Travelers and Travelers Home had notice of this lawsuit at all relevant times, and that Travelers and Travelers Home's counsel removed this case to federal court and recently filed a joint motion for summary judgment on Butters' remaining claims. (See Def.'s Mot. Summ. J. at 1, 28, ECF No. 69, certifying that Travelers and Travelers Home's counsel conferred with Butters, defining the companies jointly as “Travelers,” and stating that “Travelers” moves for summary judgment on the remaining claims; Notice Removal at 1, 3, reflecting that the same counsel removed this action and noted that Butters named the wrong defendant).
The Court notes that Butters does not appear to oppose changing Travelers' name to Travelers Home. (See Pl.'s Mot. J. Pleadings & Strike (“Pl.'s Mot.”) at 1-7, ECF No. 57, stating that Travelers' name is “procedural in nature” and “could have been addressed earlier in litigation” but Travelers “can still petition to the Court to join necessary parties or change the named defendant”). The Court also notes that case law and the record suggest that Travelers Home is the correct defendant. See Steinhauer v. Liberty Mut. Ins. Co., No. 20-35837, 2021 WL 5632475, at *1 (9th Cir. Dec. 1, 2023) (applying Oregon law in a post-house fire case against a homeowner's insurer and explaining that the “policy identified [a different entity] as the issuer of the policy” and thus “the district court correctly ruled that the [the insureds] sued the wrong party”); see also Steinhauer v. Liberty Mut. Ins. Co., No. 3:18-cv-01416-JR, 2020 WL 6333962, at *1 (D. Or. Aug. 12, 2020) (“Significantly, defendant admitted in its answer that a separate entity . . . issued the homeowner's policy at issue . . . [and] made various payments under the policy related to the fire.”), findings and recommendation adopted, 2020 WL 5743936, at *1-3 (D. Or. Sept. 25, 2020).
Given the facts above, the case law cited herein, the identity of interest between Travelers and Travelers Home, and the notice received by and absence of prejudice to Travelers Home, the Court sua sponte corrects Travelers' name in the case caption (or put another way, and to the extent necessary, substitutes Travelers Home for Travelers) and directs the Clerk to correct the docket. See Blizman, 557 F.Supp.3d at 574 n.1 (noting that Travelers Home issued the policy at issue and sua sponte correcting the plaintiff's “misnomer” under similar but not identical circumstances); Williams v. Turner Sec., Inc., No. 19-2636, 2021 WL 4462635, at *1 n.1 (D.D.C. Sept. 29, 2021) (“Defendant states that [the self-represented] Plaintiff improperly identifies Turner Services Inc. as the defendant, but because Plaintiff was employed by Turner Security, Inc. (a sister company to Turner Services, Inc.), Turner Security, Inc. is the proper defendant. Accordingly, the Court, sua sponte, ORDERS the substitution of the proper defendant[.]”); Peerless Ins. Co. v. WEO Carpentry, LLC, No. 18-1040, 2019 WL 2374380, at *4 (D. Md. June 5, 2019) (“Although leave to amend should be freely granted, a more expedient solution is in order. Defendant informs this Court that its correct name is ‘WEO Carpentry, LLC.' . . . [T]his Court will exercise its ability to substitute ‘WEO Construction' with the correct entity name[.]”).
The Court's subsequent references to “Travelers” refers to the correct defendant, Travelers Home.
II. BUTTERS' MOTION
Butters moves, pursuant to Federal Rules of Civil Procedure (“Rule”) 12(c) and 12(f), for judgment on the pleadings and to strike Travelers' affirmative defenses. (See Pl.'s Mot. at 1, 3, 7, seeking judgment on the pleadings, noting that “the pleadings have closed but [it is] early enough as to not delay a trial,” and specifically invoking Rule 12(f)). The Court first addresses Butters' Rule 12(c) motion.
A. Judgment on the Pleadings
1. Applicable Law
Rule 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” FED. R. CIV. P. 12(c). In reviewing a Rule 12(c) motion, “[a]ll allegations of fact by the party opposing the motion are accepted as true, and are construed in the light most favorable to that party.” Unite Here Loc. 30 v. Sycuan Band of the Kumeyaay Nation, 35 F.4th 695, 700 (9th Cir. 2022) (quoting Gen. Conf. Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989)); see also United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (“Although Iqbal establishes the standard for deciding a Rule 12(b)(6) motion, [the Ninth Circuit has] said that Rule 12(c) is functionally identical to Rule 12(b)(6) and that the same standard of review applies to motions brought under either rule.”) (simplified).
“[W]hen presented with ‘matters outside the pleadings' in connection with a motion to dismiss for failure to state a claim under Rule 12(b)(6) or for judgment on the pleadings under Rule 12(c), the district court may choose to exclude such extrinsic matters and address the motion under the applicable Rule 12 standards, or it may convert the motion into ‘one for summary judgment under Rule 56.'” Jones v. L.A. Cent. Plaza LLC, 74 F.4th 1053, 1059 (9th Cir. 2023) (citing FED. R. CIV. P. 12(d)). In connection with the motion pending here, Butters quoted part of the parties' conferral emails in his Local Rule 7-1 certification (see Pl.'s Mot. at 1), and Travelers submitted a copy of, and presents background and supporting arguments based on, the emails. (See Decl. David Ryan Supp. Def.'s Resp. Pl.'s Mot. J. Pleadings & Mot. Strike (“Ryan Decl.”) ¶ 2, ECF No. 59; id. Ex. 101 at 1-3; Def.'s Resp. at 4, 10, 12, citing Ryan Decl. Ex. 101.) The Court does not need to convert Butters' Rule 12(c) motion into one for summary judgment because the conferral emails do not impact the Court's resolution of the Rule 12(c) motion.
The Ninth Circuit has explained that “[a] district court must grant a motion for judgment on the pleadings when there is no issue of material fact, and the moving party is entitled to judgment as a matter of law.” Unite Here, 35 F.4th at 700 (citing Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009)); see also Fajardo v. Cnty. of L.A., 179 F.3d 698, 699 (9th Cir. 1999) (“A judgment on the pleadings is properly granted when, taking all the allegations in the nonmoving party's pleadings as true, the moving party is entitled to judgment as a matter of law.” (citing Merchs. Home Delivery Serv., Inc. v. Hall & Co., 50 F.3d 1486, 1488 (9th Cir. 1995))). The Ninth Circuit, however, has also explained that “a plaintiff is not entitled to judgment on the pleadings if the defendant's answer raises issues of fact or affirmative defenses.” Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th Cir. 2015) (citing Gen. Conf. Corp., 887 F.2d at 230).
2. Analysis
The Court recommends that the district judge deny Butters' motion for judgment on the pleadings.
Butters maintains that Travelers could respond to his allegations in three ways: “Admit, deny, or state lack of knowledge.” (Pl.'s Mot. at 1-2.) Butters takes issue with the fact that Travelers “‘assert[ed]/insert[ed]' facts into [its] answer,” including “facts that [Butters] simply did not allege in [his second amended] complaint[.]” (Id. at 2.) Butters claims that it is “outrageous” that Travelers is “not only assert[ing]/insert[ing] [such facts] in the pleadings, but is trying to pass them off as admissions,” and that Travelers is “intentionally trying to mislead the Court.” (Id.) Butters adds that it is “impossible to tell which facts” Travelers admitted or denied. (Id. at 3; see also Pl.'s Reply Def.'s Resp. Pl.'s Mot. J. Pleadings & Mot. Strike (“Pl.'s Reply”) at 1, ECF No. 65, stating that Travelers “incorrectly contends that they can assert new facts in the answer”).
The Court finds Butters' arguments unpersuasive. Contrary to Butters' arguments, Travelers was entitled to allege new and conflicting matter and affirmative defenses in its answer. A defendant's pleading of such matter can prevent a Rule 12(c) motion from being successful:
A material issue of fact that will prevent a motion under Rule 12(c) from being successful may be framed by an express conflict on a particular point between the parties' respective pleadings. It also may result from the defendant pleading new matter and affirmative defenses in his answer. According to Rule 7(a), the plaintiff is not required to reply to affirmative defenses or new matter appearing in the answer, and, under Rule 8(b)(6), averments in a pleading to which no responsive pleading is required are considered by the court to have been denied.5C Charles Alan Wright et al., Federal Practice and Procedure § 1368 (3d ed. Apr. 2023 update) (footnotes omitted); see also Sakes v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (“An affirmative defense is defined as ‘[a] defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's . . . claim, even if all allegations in the complaint are true.'”) (citation omitted). Courts have also rejected similar arguments when, as here and discussed below, it is clear what allegations the defendant denies and admits. See Rapapor v. Soffer, No. 10-cv-00935, 2012 WL 2522069, at *2 (D. Nev. June 29, 2012) (denying the plaintiff's “overly technical” motion to strike the defendant's answer, explaining that the defendant's answer “offer[ed] his own version of the facts” and made “clear what allegations [he was] denying . . . and what allegations [he] admit[ted],” and adding that “[w]hatever additional information [the] [d]efendant [sought] to provide in addition to a denial [was] well within his right”).
In fact, the Ninth Circuit has held that if a defendant's answer raises issues of fact or affirmative defenses, a plaintiff is not entitled to judgment on the pleadings under Rule 12(c). See Pit River, 793 F.3d at 1159 (“[U]nder [Rule] 12(c), a plaintiff is not entitled to judgment on the pleadings if the defendant's answer raises issues of fact or affirmative defenses.... In this case, the defendants' answers do both. We therefore decline [the plaintiff's] invitation to rule on the merits of its . . . claims.”). At minimum, Travelers' answer raises issues of fact. Accordingly, Butters is not entitled to judgment on the pleadings under Rule 12(c).
For example, Butters' has two remaining claims for negligence per se and fraudulent misrepresentation by reckless disregard. See Butters, 2023 WL 3559472, at *2-7 (declining to dismiss these claims from Butters' second amended complaint). Butters' ability to prevail on his negligence per se claim turns largely on whether he can satisfy what is known as the physical impact rule:
In his Second Amended Complaint, . . . Butters alleges that he suffered physical symptoms from chronic stress-including increased heart rate and blood pressure, weight loss, alopecia, and eczema-because of Travelers' conduct. ECF 22-1 at 5-6. Generally, a person cannot recover for negligent infliction of emotional distress if the person is not also physically injured, threatened with physical injury, or physically impacted by the tortious conduct. Neither the Supreme Court nor the Oregon Court of Appeals have sought to define the minimum amount of bodily harm necessary to constitute physical impact.... Here, Butters alleges that he has suffered tangible physical injury from the stress induced by Travelers' purported negligence. Butters therefore satisfies the physical impact rule on a motion to dismiss. The objection from Travelers on this point does not prevent the Court from adopting the F&R's recommendation to deny Travelers' motion to dismiss the negligence per se claim.id. at *3 (simplified).
In its answer, Travelers denies and disputes Butters' allegations that he suffered from physical symptoms from chronic stress, such as increased heart rate and blood pressure, weight loss, alopecia, and eczema, because of Travelers' conduct. (Compare Second Am. Compl. at 4-6, 8-9, ECF No. 22-1, alleging the aforementioned physical symptoms from chronic stress in paragraphs 3.11, 4.6, and 5.10, with Def.'s Answer ¶¶ 4-6, 16, admitting facts unrelated to Butters' allegations that he suffered from physical symptoms from chronic stress and “[o]therwise . . . den[ying],” among other things, the allegations in paragraphs 3.11, 4.6, and 5.10, and denying that Butters has “a viable tort claim” based, in part, on “the absence of any physical impact”). It is evident that at minimum, Travelers' answer raises a genuine issue of material fact.
The same is true with respect to Butters' fraudulent misrepresentation claim. This claim turns largely on Butters' allegations that (1) “Travelers represented that Butters' damaged property could not be salvaged and told Butters that he could throw these items away,” (2) “Travelers paid for Butters' ‘non-salvage activities' that same day and that he relied on Travelers' representation by disposing of his damaged property,” (3) “Travelers made this representation without examining the contents of Butters' inventory in person,” and (4) “at least several weeks later, Travelers sent Butters a letter stating that Travelers wanted to walk through Butters' house and examine his now-disposed-of inventory to determine whether anything could be salvaged or cleaned, rather than rely on the inventory spreadsheet that Butters had provided.” Butters, 2023 WL 3559472, at *5 (quoting paragraph 5.8 of the second amended complaint). This claim also turns on Butters' assertion that “Travelers acted in reckless disregard by misrepresenting that Butters could not salvage his damaged property, as shown in part by Travelers paying Butters to remove that property but later requesting an in-person assessment.” id.
Travelers, however, denies Butters' fraudulent misrepresentation allegations. Travelers alleges, among other things, that its “alleged statements were true and accurate when made, were based on information provided by the insureds, and were induced by statements by the insureds that proved to be false and/or misleading,” and that Butters had “no reasonable basis for supposedly relying on statements (as alleged in the Second Amended Complaint) by the insurer about salvage versus non-salvage condition of the insureds' own property” because the “alleged representations were expressly disclaimed by the terms of the Policy and written Reservation of Rights letters.” (Compare Second Am. Compl. at 6-10, making fraudulent misrepresentation allegations in paragraphs 5.1 through 5.14, with Def.'s Answer ¶¶ 6, 14-15, admitting to some basic facts but otherwise denying the allegations in paragraphs 5.1 through 5.14 and pleading conflicting allegations).
In sum, the Court finds that at a minimum, Travelers' answer raises genuine issues of material fact and thus Butters is not entitled to judgment on the pleadings. SeePit River, 793 F.3d at 1159. Accordingly, the Court recommends that the district judge deny Butters' Rule 12(c) motion.
B. Motion to Strike
1. Applicable Law
Rule 12(f) provides that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). “A matter is redundant if it ‘constitutes[] needless repetition'; is ‘foreign to the issue'; or merely addresses the elements of the cause of action.” Butcher v. City of Marysville, 398 F.Supp.3d 715, 728 (E.D. Cal. 2019) (quoting Sliger v. Prospect Mortg., LLC, 789 F.Supp.2d 1212, 1216 (E.D. Cal. 2011) and citing Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F.Supp.3d 986, 991 (E.D. Cal. 2016)); see also Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010) (“[T]he claim for damages could not be redundant, as it does not appear anywhere else in the complaint.”).
A matter is “immaterial” if it “has no essential or important relationship to the claim for relief or the defenses being plead.” Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 967 (9th Cir. 2014) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)). “Impertinent material,” on the other hand, “consists of statements that do not pertain, and are not necessary, to the issues in question.” Whittlestone, 618 F.3d at 974 (quoting Fantasy, Inc., 984 F.2d at 1527). Further, a matter is “scandalous” if “it generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Ogdon v. Grand Canyon Univ. Inc., No. 22-cv-00477, 2023 WL 5046242, at *1 (D. Ariz. Aug. 8, 2023) (quoting Jud. Watch v. U.S. Dep't of Com., 224 F.R.D. 261, 263 (D.D.C. 2004)).
Rule 12(f) also provides that a “court may strike from a pleading an insufficient defense[.]” FED. R. CIV. P. 12(f). According to the Ninth Circuit, “[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.” Simmons v. Navajo Cnty., 609 F.3d 1011, 1023 (9th Cir. 2010) (simplified), overruled on other grounds by Castro v. Cnty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc). The Ninth Circuit has explained that “the ‘fair notice' required by the pleading standards only requires describing the defense in ‘general terms.'” Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan Wright et al., Federal Practice and Procedure § 1274 (3d ed. 1998)).
“[T]he majority of courts have rightly held that Rule 8(c) does not warrant the extension of the Twombly and Iqbal [Rule 12(b)(6) pleading] standard to affirmative defenses.” 5 Charles Alan Wright et al., Federal Practice and Procedure § 1274 (4th ed. Apr. 2023 update). Relying in part on the above passages from Simmons and Kohler, the back-up judge in this case has likewise endorsed the majority view:
Although the Ninth Circuit has not expressly analyzed whether the pleading requirements of Iqbal and Twombly apply to affirmative defenses, after the decisions in Iqbal and Twombly were issued, the Ninth Circuit has continued to hold that affirmative defenses need only provide ‘fair notice' and be alleged ‘in general terms.' . . . District Courts have considered the opinion in Kohler to resolve the split in the district courts by explaining that the pleading standards only require describing an affirmative defense in general terms.... Until the Ninth Circuit or Supreme Court holds otherwise, the Court is bound to follow the Ninth Circuit's holdings that affirmative defenses need only provide fair notice of the defense and need only be described in general terms....
Moreover, the difference between the rules governing pleading claims and pleading affirmative defenses supports a finding that Iqbal and Twombly do not apply. Rule 8(a)(2) requires ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' . . . whereas Rule 8(c)(1) requires a party simply to ‘affirmatively state any . . . affirmative defense.' . . . ‘Applying the same standard of pleading to claims and affirmative defenses, despite this clear distinction in the [R]ules' language, would run counter to the Supreme Court's warning in Twombly that legislative action, not judicial interpretation, is necessary to ‘broaden the scope' of specific federal pleading standards....
Additionally, the Court agrees with the explanation of [a district court from this circuit] that fairness considerations also support this interpretation[, as] . . . [p]laintiffs and defendants are not similarly situated at the pleading stage....Fathers & Daughters Nev., LLC v. Moaliitele, No. 3:16-cv-00926-SI, 2016 WL 7638187, at *2-3 (D. Or. Dec. 19, 2016) (citations omitted).
Ultimately, “[t]he function of a [Rule] 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Whittlestone, 618 F.3d at 973 (ellipses omitted) (quoting Fantasy, Inc., 984 F.2d at 1527). “The disposition of a motion to strike is within the discretion of the district court.” Kim v. Beaverton Sch. Dist. 48J, No. 3:20-cv-2025-SI, 2022 WL 594421, at *1 (D. Or. Feb. 28, 2022) (citing Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 (9th Cir. 1990)). Courts view with disfavor and infrequently grant motions to strike “because striking a portion of a pleading is a drastic remedy[,] . . . it often is sought by the movant simply as a dilatory or harassing tactic,” 5C Charles Alan Wright et al., Federal Practice and Procedure § 1382 (3d ed. Apr. 2023 update), and pleadings in federal practice are of “limited importance.” Kim, 2022 WL 594421, at *1 (quoting Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F.Supp.3d 850, 858 (N.D. Cal. 2014)).
“A ‘basic polic[y]' of the Federal Rules is ‘that pleadings are not an end in themselves but are only a means to assist in the presentation of a case to enable it to be decided on the merits.'” Bd. of Supervisors of Issaquena Cnty., Miss. v. United States, 84 F.4th 1359, 1371 (Fed. Cir. 2023) (quoting 6 Charles Alan Wright et al., Federal Practice and Procedure § 1473 (3d ed. Apr. 2023 update)).
2. Analysis
The Court recommends that the district judge deny Butters' motion to strike under Rule 12(f).
Shortly after Travelers' removal, the Court granted Butters' application for CM/ECF registration as a self-represented party. (See ECF Nos. 3-4.) The application advised Butters that “[a]pplying to e-file constitutes consent to electronic service of documents,” he would “receive electronic service via e-mail from CM/ECF when documents are filed in [his] case,” and if he was “unable or unwilling to abide by any of the applicable requirements,” he should not apply. (ECF No. 3 at 1-2) (bold omitted). In its Order granting Butters' application under Local Rule 5-1(a), the Court noted that Butters “consent[ed] to electronic service pursuant to [Rule] 5(b)(2)(E).” (ECF No. 4 at 1.)
“‘CM/ECF' stands for Case Management/Electronic Case Files and is the federal judiciary's case management and electronic filing system.” Atkins v. Stivers, No. 21-5798, 2021 WL 7084872, at *1 n.2 (6th Cir. Dec. 16, 2021).
Rule 5 provides that “[a] paper is served under this rule by . . . sending it to a registered user by filing it with the court's electronic-filing system” and “service is complete upon filing[.]” FED. R. CIV. P. 5(b)(2)(E). Local Rule 5-1(a) also provides that “[a] pro se party who is not incarcerated may apply to the assigned judge for permission to become a Registered [CM/ECF] User by submitting a request to e-file,” that “[u]pon application, a pro se party consents to electronic service via CM/ECF,” that “[i]f the request is approved, that individual will become a Registered User in the specific case,” and “[u]nless otherwise limited by these rules, Registered Users must file all pleadings, documents . . ., and other papers electronically through CM/ECF.” LR 5-1(a)(2)-(3).
Here, Travelers filed its answer on May 31, 2023, and CM/ECF electronically mailed a notice of electronic filing to the email address Butters submitted with his application for CM/ECF registration. (Compare ECF No. 49, listing the emails CM/ECF electronically mailed the notice of electronic filing for Travelers' answer, with ECF No. 3 at 2, providing the same email address). Butters does not appear to dispute that he received the notice of electronic filing or challenge the method in which Travelers served him with its answer. Even if Butters had done so, though, Travelers' electronic filing of its answer via CM/ECF was sufficient to serve Butters. See Redwind v. W. Union, LLC, No. 3:18-cv-02094-SB, 2019 WL 6131439, at *2 (D. Or. Nov. 19, 2019) (“Redwind[, a self-represented litigant,] challenges Western Union's failure to serve her with a paper copy of its answer, but the Court granted Redwind's application for CM/ECF registration in January 2019, and therefore Western Union's electronic filing of its answer via CM/ECF was sufficient to serve Redwind.”) (citation omitted); see also Kuang-Bao Ou-Young v. Stone, No. 19-cv-07000, 2020 WL 469985, at *1 (N.D. Cal. Jan. 29, 2020) (noting that the self-represented “[p]laintiff, who [was] a registered E-Filer, received email service of the motion [to dismiss] through the Court's Electronic Case Filing System” but did not file an opposition).
Given these facts, the Court concludes that Butters' motion to strike under Rule 12(f) is untimely. “A motion to strike an affirmative defense must be filed ‘within 21 days after being served with the pleading.'” Barton v. Delfgauw, No. 21-cv-05610, 2022 WL 18108401, at *1 (W.D. Wash. Oct. 26, 2022) (quoting FED. R. CIV. P. 12(f)(2)). In Barton, for example, the self-represented plaintiff filed a motion to strike affirmative defenses from the defendants' answer in September 2022, even though the defendants filed their answer and affirmative defenses in January 2022. id. The plaintiff also failed to explain “why he waited until September to file a motion to strike.” id. The court recognized that “[i]n certain circumstances, [a] court may consider and grant an untimely motion to strike where it seems proper to do so.” id. (simplified). The court, however, did “not find it appropriate to do so” because the plaintiff could “raise any issues with [the] defendants' affirmative defenses in a motion for summary judgment[.]” id. Accordingly, the court denied the plaintiff's motion to strike the defendants' affirmative defenses. id.
Similarly here, Butters did not file his motion, which he styles as a “motion for judgment on the pleadings/motion to strike” and specifically invokes Rule 12(f), until August 14, 2023. (Pl.'s Mot. at 1, 3) (bold and all caps omitted). Travelers, however, filed and served its answer and affirmative defenses on May 31, 2023. Less than three weeks later, on June 19, 2023, Butters sent a conferral email to Travelers' counsel regarding his “motion to strike the defendant's affirmative defenses.” (Ryan Decl. Ex. 101 at 2-3.) Travelers' counsel responded the next day and before Rule 12(f)'s twenty-one day deadline expired. (See id. Ex. 101 at 1.) Nevertheless, Butters did not file his motion until August 14, 2023, the same day that he sent an email to Travelers' counsel stating that he had filed a Rule 12 motion. (Id.; ECF No. 57.)
Butters has not explained why he waited until mid-August to file his motion to strike and the Court does not find it appropriate to consider and grant an untimely motion to strike. Butters was able to raise any necessary issues with Travelers' defenses in the opposition he filed to Travelers' pending motion for summary judgment, and appears to have done so. (See Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. at 1-11, ECF No. 73, arguing that in its motion and “improperly pleaded answer,” Travelers failed adequately to rebut allegations in Butters' second amended complaint).
The Court also notes that Butters' motion to strike Travelers' second and third affirmative defenses (real party in interest and non-liability of a shareholder) is moot in light of Part I above. (See Pl.'s Mot. at 4; Def.'s Answer ¶¶ 9-10.) Further, the Court notes that Butters moves to strike Travelers' first, seventh, and ninth affirmative defenses on the ground that they are “negative defenses.” (Pl.'s Mot. at 4.) The Court, however, need not strike negative defenses when it would do nothing more than tidy up the pleadings and Butters was entitled to present his arguments at the summary judgment stage. See Adidas Am., Inc. v. Aviator Nation, Inc., No. 3:19-cv-02049-HZ, 2021 WL 91623, at *4 (D. Or. Jan. 10, 2021) (“The Court declines . . . to strike these defenses simply because they are negative defenses. At this stage in the litigation, striking negative defenses would do little more than tidy up the pleadings.... Even if stricken, Defendant would still be entitled to make these arguments at a later stage in the litigation.”) (simplified).
Finally, and with respect to Travelers' remaining affirmative defenses, Butters primarily disputes the relevancy and/or sufficiency of portions of Travelers' answer and whether he received fair notice of Travelers' defenses, and argues disputed issues of fact and law. (See Pl.'s Mot. at 4-7, asserting, among other things, that certain allegations do not “provide a defense” to Butters' remaining claims and are “insufficiently pled” and in part concern claims that the Court dismissed). A Rule 12(f) motion cannot be based on arguments regarding disputed issues of fact and law. See Fathers & Daughters, 2016 WL 7638187, at *4 (“Plaintiff is arguing issues of fact[] and law that are disputed, and this is not an appropriate basis for a Rule 12(f) motion.”). Taken as a whole, Travelers' answer describes its defenses in “general terms” and thus provides “fair notice” to Butters. See Kohler, 779 F.3d at 1019. As to relevance, Butters was able to present any relevancy arguments in his opposition to Travelers' motion for summary judgment. See generally Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (noting that “objections for relevance are generally unnecessary on summary judgment because they are duplicative of the summary judgment standard itself,” and “parties briefing summary judgment motions . . . [can] simply argue the import of the facts reflected in the evidence”) (simplified).
For all of these reasons, the Court recommends that the district judge deny Butters' Rule 12(f) motion.
At the end of its response and immediately before “welcom[ing] further relief as the Court deems reasonable and proper under the circumstances,” Travelers states that Butters' motions are “improper, vexatious, and . . . flout the very standards [Butters] acknowledged in conferral and the motion itself, in violation of [Rule] 11(b).” (Def.'s Resp. at 20.) Travelers, however, did not formally move the Court to sanction Butters, or adequately demonstrate that sanctions are appropriate. The Court finds that the denial of Butters' motion is the appropriate outcome here.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Butters' motion for judgment on the pleadings and to strike affirmative defenses (ECF No. 57).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.