United States District Court, W.D. Pennsylvania
HEATH W. GRAY, Plaintiff,
ROBERT GILMORE, MICHAEL ZAKEN and STEPHEN DURCO, Defendants.
Pupo Lenihan Magistrate Judge
Nicholas Ranjan United States District Judge
civil lawsuits, defendants sometimes include a series of
boilerplate affirmative defenses in their answers. One of the
more common ones is: “Plaintiff has failed to state a
claim.” It's usually listed in the answer, yet
rarely raised after the pleadings have closed. But is it
proper to include that as an affirmative defense in an answer
when, as here, a court has already decided a Rule 12(b)(6)
motion, and found that the complaint does, in fact, state a
claim? Put differently, can a defendant raise again in its
answer this same defense after it was just rejected by the
plaintiffs don't bother challenging the assertion of a
“failure to state a claim” defense in the answer.
But the pro se Plaintiff here did. He moved to
strike the defense, which the Magistrate Judge denied, and
has now objected to that decision.
Magistrate Judge's well-reasoned opinion was correct on
nearly every basis-but on this one (largely technical) issue,
Plaintiff here makes a good point. As other district courts
have held, once a Rule 12(b)(6) motion is denied, a defendant
can't assert that same defense in its answer. That would
give him or her a second bite at the apple, without showing a
change in the law or the facts that any other reconsideration
Heath Gray filed a complaint seeking damages and injunctive
relief. The complaint centers on the use of video cameras
during prison contact visits. Before and after a contact
visit, a prisoner is strip-searched on camera and in front of
a corrections officer. Additionally, should a prisoner use
the bathroom during a contact visit, the bathroom is also
recorded by video camera. Mr. Gray alleges the video is
continually monitored and stored by remote prison staff,
which constitutes a bodily intrusion unwarranted by any
legitimate penological interest and a violation of his rights
under the Fourth Amendment.
moved to dismiss for failure to state a claim on January 4,
2019 [ECF No. 20)], and Mr. Gray amended his complaint. [ECF
No. 26]. Defendants filed another motion to dismiss for
failure to state a claim on February 6, 2019 [ECF No. 28],
which the Court denied on August 30, 2019. [ECF No. 43].
Defendants filed an answer on September 13, 2019 [ECF No.
48], raising nine affirmative defenses.
September 27, 2019, Mr. Gray filed a motion to strike eight
out of the nine affirmative defenses. [ECF No. 51].
Defendants responded on October 11, 2019 [ECF No. 56], and
the Magistrate Judge issued a Report and Recommendation on
November 12, 2019, recommending that Mr. Gray's motion be
granted in part and denied in part. [ECF No. 64].
Specifically, the Magistrate Judge recommended that Mr.
Gray's motion be granted as to Defendants' fourth and
eighth defenses and denied as to the remaining defenses.
Gray filed a timely objection to the Report and
Recommendation on November 21, 2019 [ECF 67], objecting to
only one issue. That is, Mr. Gray objects to the Magistrate
Judge's recommendation not to strike Defendants'
second affirmative defense of “failure to state a
claim.” Though Defendants had 14 days to oppose Mr.
Gray's objection, they filed no response. The motion is
now ripe for disposition.
as here, a party files a timely objection, the Court is
required to “make a de novo determination of those
portions of the report or specified findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). The district court may
accept, reject, or modify the recommended disposition, as
well as receive more evidence or return the matter to the
magistrate judge with instructions. Id. Here, there
is only one objection-whether the Court should strike the
second affirmative defense, for failure to state a claim.
Rule of Civil Procedure 12(f) provides that “[t]he
Court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Courts have broad discretion in resolving
motions to strike. Hanover Ins. Co. v. Ryan, 619
F.Supp.2d 127, 132-3 (E.D. Pa. 2007) (citing Cipollone v.
Liggett Group, Inc., 789 F.2d 181, 188 (3d. Cir. 1986)).
“The purpose of a motion to strike is to clean up the
pleadings, streamline litigation, and avoid unnecessary
forays into immaterial matters.” Simmons v.
Nationwide Mut. Fire Ins. Co., 788 F.Supp.2d 404, 407
(W.D. Pa. 2011) (quoting McInerney v. Moyer Lumber &
Hardware, Inc., 244 F.Supp.2d 393, 402 (E.D. Pa. 2002))
(internal quotation marks omitted).
Magistrate Judge's Report and Recommendation declined to
strike Defendants' second defense because failure to
state a claim is not a waivable defense under the Federal
Rules of Civil Procedure. The Report and Recommendation cited
Rule 12(h)(2) for the proposition that the defense may be
raised multiple times “. . . in any pleading allowed or
ordered under Rule 7(a); by a motion under Rule 12(c); or at
trial.” Fed.R.Civ.P. 12(h)(2). The Magistrate Judge
reasoned that “Defendants are free to argue that
Plaintiff failed to state a claim in any pleading, at the