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Gray v. Gilmore

United States District Court, W.D. Pennsylvania

December 23, 2019

HEATH W. GRAY, Plaintiff,

          Lisa Pupo Lenihan Magistrate Judge


          J. Nicholas Ranjan United States District Judge

         In 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 court?

         Most 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.

         The 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 motion demands.


         Plaintiff 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.

         Defendants 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.

         On 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.

         Mr. 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.


         Where, 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.

         Federal 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).

         The 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 ...

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