This ruling covers an issue discussed
at the FDLI conference: what is the proper pleading standard for affirmative
defenses? The court says it’s Iqbal/Twombly,
but can’t really be said to apply those cases.
Previous
ruling. Miller sued over
“Ghirardelli® Chocolate Premium Baking Chips-Classic White,” which don’t
contain white chocolate. Ghirardelli’s
answer asserted 25 affirmative defenses, 24 of which Miller moved to
strike. The court denied the motion.
Courts may strike as redundant, immaterial, or impertinent
defenses that are not actually affirmative defenses. A defense that
demonstrates that a plaintiff hasn’t met its burden of proof on a required
element is not an affirmative defense.
Courts differ on whether prejudice is required, but moving to strike is
usually a waste of time and money without prejudice. Expensive and potentially unnecessary and
irrelevant discovery is prejudice; a motion to strike can be proper if it makes
the issues less complicated and streamlines the ultimate resolution of the
case.
Also, an affirmative defense is insufficiently pleaded if it
fails to give the plaintiff fair notice of the nature of the defense. Courts in N.D. Cal. have applied Iqbal/Twombly to affirmative defenses,
requiring defendants to allege enough facts to state a plausible claim. This is
to “weed out the boilerplate listing of affirmative defenses which is
commonplace in most defendant's pleadings.”
Miller moved to strike 13 affirmative defenses as well as
Ghirardelli’s “reservation of rights” as not actually affirmative defenses
(e.g., that Miller didn’t reasonably rely on the product name). He didn’t argue that striking the affirmative
defenses would prevent unnecessary discovery, but instead argued that he bore
the burden of proof on these issues.
There was no reason to grant the motion to strike when it would serve no
real purpose to streamline the case.
Miller also argued that certain defenses were insufficiently
pleaded. The court disagreed. For
example, the statute of limitations defense put Miller on fair notice by
identifying some of the applicable statutes of limitations and explaining that
the class period is longer than the limitations periods that may apply to
absent class members, and also that the precise limitations period depends on a
choice of law analysis. Merits analysis
was for summary judgment.
So too with preemption; Ghirardelli’s answer alleged that “[t]he
claims are barred to the extent that they are preempted by federal law,
including specifically by FDA labeling requirements and the prohibition on
private rights of action to enforce FDA rules.”
This was enough because preemption could apply regardless of how it was
pleaded. And so on, including,
“[i]njunctive relief is not necessary or appropriate because voluntary changes
in the label and website have rendered the requested relief moot.” Though Miller argued that Ghirardelli should’ve
described the changes, this was sufficient detail for pleading purposes. As the court notes below but doesn’t find
important, this doesn’t seem like it’s applying Iqbal/Twombly equally—can you imagine a plaintiff surviving a motion to dismiss with
a claim that a “label and website” is misleading?
Even the pure boilerplate survived, such as “23.
Contributory Fault: The recovery of Plaintiff and/or other class members is
barred and/or should be reduced because of contributory negligence or fault
and/or comparative negligence or fault. 24. The FAC, and each cause of action
alleged therein, is barred by the doctrines of unclean hands, estoppel, waiver,
and laches. 25. Plaintiff, and any class members, failed or refused to exercise
reasonable care and diligence to avoid loss and minimize damages, and
therefore, may not recover for losses that could have reasonably prevented.” Though these defenses were unsupported by
factual allegations, and were the bare statement of a legal doctrine, Ghirardelli
rejoined that it was common to allege these defenses in boilerplate fashion.
The court was
not unsympathetic to Miller's point
that he is entitled to notice sufficient to oppose this defense. The court also
recognizes the implicit equities argument that is at play here: the court took
a hard look at the fact allegations in the complaint in the context of a
standing argument that Miller thought would be better illuminated at the class
certification stage after discovery. Given that posture, and [Iqbal's] and Twombly 's application to the affirmative defenses, then Miller
doubtless thinks the same hard look should apply here, too.
Though these were fair points, a motion to strike is a
different context. Viewed in the context
of the complaint, there was fair notice of the defenses. (Unclean hands, estoppel, waiver, and laches? Really?
What facts provide proper notice of these? Where is the allegation of facts demonstrating prejudice to
Ghirardelli based on its reasonable belief that Miller wouldn’t sue?) Anyway, the reality was that there was no
prejudice to Miller and no discovery burden.
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