United States District Court, D. Hawaii
EMERSON M.F. JOU, M.D., Plaintiff,
GREGORY M. ADALIAN, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON
THE PLEADINGS AS TO DEFENDANT'S ANSWER AND AFFIRMATIVE
DEFENSES, ECF NO. 176
Michael Seabright, Chief United States
Emerson M.F. Jou (“Plaintiff”) moves for Judgment
on the Pleadings (the “Motion”) as to Defendant
Gregory M. Adalian's (“Defendant”)
affirmative defenses set forth in his October 7, 2016 Answer
to Plaintiff's Second Amended Complaint
(“SAC”). ECF No. 176. For the reasons set forth
below, the Motion is DENIED as untimely.
case, and its predecessor, has a long and somewhat tortured
history. See, e.g., Jou v. Adalian, 2015 WL
477268 (D. Haw. Feb. 5, 2015) and Jou v. Adalian,
2016 WL 4582042 (D. Haw. Sept. 1, 2016). This Motion,
however, is fairly straightforward and requires only limited
filed his original complaint in this case on April 29, 2015.
ECF No. 1. Defendant answered on October 23, 2015, setting
forth 20 affirmative defenses. ECF No. 20. A First Amended
Complaint (“FAC”) was filed on November 13, 2015,
ECF No. 21, and on November 23, 2015 the answer was filed,
this time with 22 affirmative defenses. ECF No. 24.
September 1, 2016, the court entered an Order dismissing the
FAC, but granting Plaintiff leave to amend as to a single
claim. ECF No. 67. Plaintiff's SAC was then filed on
September 22, 2016, ECF No. 68, and the Answer to the SAC was
filed on October 7, 2016. ECF No. 72. This Answer also
contains 22 affirmative defenses.
24, 2017, over nine months after Defendant filed his Answer
to the SAC, Plaintiff filed this Federal Rule of Civil
Procedure (“Rule”) 12(c) Motion seeking judgment
on the majority of the affirmative defenses. Plaintiff makes
two arguments: 1) the Twombly/Iqbal plausibility
standard applies to affirmative defenses; and 2) regardless
of the standard that applies, Defendant's affirmative
defenses are conclusory or boilerplate, and thus judgment on
the affirmative defenses must be entered in Plaintiff's
favor. Defendant filed an opposition on August 16, 2017. ECF
No. 192. The court finds this matter suitable for disposition
without a hearing pursuant to Local Rule 7.2(d).
the court does not address the merits of Plaintiff's
claim, finding that the Motion should be construed as one
brought under Federal Rule of Civil Procedure 12(f), and is
untimely. In reaching this decision, the court addresses two
issues. First, whether the Twombly/Iqbal standard
applies to affirmative defenses. And second, whether the
Motion is timely. And in discussing the second issue, the
court examines the relationship between Rule
12(f) (which places a time limit on the filing
of a motion to strike an “affirmative defense”)
and Rule 12(h)(2)(B) (which authorizes the filing of a Rule
12(c) motion for failure “to state a legal defense to a
Twombly/Iqbal Do Not Apply to Affirmative
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), require that
a complaint contain sufficient factual information to state a
plausible claim to relief. Since Twombly and
Iqbal, district courts in the Ninth Circuit have
been divided on whether this standard applies to affirmative
defenses. Compare, e.g., Perez v.
Gordon & Wong Law Grp., P.C., 2012 WL
1029425, at *6-7 (N.D. Cal. Mar. 26, 2012) (finding that the
heightened standard applies to affirmative defenses); and
Dion v. Fulton Friedman & Gullace LLP, 2012 WL
160221, at *2-3 (N.D. Cal. Jan. 17, 2012) (explaining that a
majority of district courts have extended Twombly
and Iqbal to affirmative defense
pleading); with Exp. Dev. Canada v. ESE Elecs.
Inc., 2017 WL 1838581, at *3-4 (C.D. Cal. May 4, 2017)
(declining to extend the Twombly and Iqbal
pleading standard to affirmative defenses); and Kohler v.
Islands Rests., LP, 280 F.R.D. 560, 566 (S.D. Cal. 2012)
years ago this court refused to extend the
Twombly/Iqbal plausibility standard to affirmative
defenses. See Cape Flattery Ltd. v. Titan Mar. LLC,
2012 WL 3113168 (D. Haw. July 31, 2012). Cape
First, Twombly and Iqbal address claims for
relief under Rule 8(a)(2), which requires that a claim for
relief provide “a short and plain statement of the
claim showing that the pleader is entitled to
relief.” (emphasis added). In comparison,
“[s]tating an affirmative defense under Rule 8(c) . . .
does not require the pleader to ‘show' entitlement
to its defense. Rather, ...