Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jou v. Adalian

United States District Court, D. Hawaii

August 23, 2017

EMERSON M.F. JOU, M.D., Plaintiff,


          J. Michael Seabright, Chief United States District Judge


         Plaintiff 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.


         This 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 background.

         Plaintiff 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.

         On 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.

         On July 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).

         III. ANALYSIS

         Ultimately, 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)[1] (which places a time limit on the filing of a motion to strike an “affirmative defense”) and Rule 12(h)(2)(B)[2] (which authorizes the filing of a Rule 12(c) motion for failure “to state a legal defense to a claim”).

         A. Twombly/Iqbal Do Not Apply to Affirmative Defenses

         Bell 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);[3] 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) (same).

         Several 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 Flattery explained:

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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.