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United States v. Kennebec Scrap Iron Inc.

United States District Court, D. Maine

November 10, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNEBEC SCRAP IRON, INC., Defendant.

          ORDER ON GOVERNMENT'S MOTION TO STRIKE AFFIRMATIVE DEFENSES

          George Z. Singal, United States District Judge

         Before the Court is the Government's Motion to Strike Twenty-Three of Defendant's Affirmative Defenses (ECF No. 9). After considering the Motion and Memorandum of Law in Support (ECF No 9-1), Defendant's Response (ECF No. 16), and the Government's Reply (ECF No. 18), and for the reasons briefly explained herein, the Court GRANTS IN PART and DENIES IN PART the Motion.

         I. FACTUAL BACKGROUND

         On April 1, 2016, the United States commenced a civil action for injunctive relief and civil penalties against Kennebec Scrap Iron, Inc., for allegedly failing to comply with the conditions of a permit issued to the company pursuant to Section 402 of the Clean Water Act, 33 U.S.C. § 1342. The Complaint alleges that the permit authorizes Defendant to discharge storm water from its scrap metal recovery and recycling operation in Oakland, ME, to tributaries of Messalonskee Stream, a perennial stream that flows into the Kennebec River. (See Complaint (ECF No. 1) at 7-9.) The Complaint further alleges that Defendant failed to maintain a sufficient Storm Water Pollution Prevention Plan; failed to maintain certain methods for managing storm water; failed to conduct or properly conduct benchmark monitoring at storm water outfalls; failed to conduct or properly conduct visual monitoring at the outfalls; failed to properly conduct quarterly site evaluations; and failed to properly conduct employee training. (Complaint at 10-15.) On August 22, 2016, Defendant filed an Answer that included thirty-three affirmative defenses. On September 12, 2016, the Government filed its Motion to Strike twenty-three of those defenses, as described below.

         II. LEGAL STANDARD

         Pursuant to Federal Rule of Civil Procedure 12(f), this Court “may strike from a pleading an insufficient defense.” However, “motions to strike defenses are disfavored.” Tobin v. Univ. of Me. Sys., No. CIV. 98-237-B, 2000 WL 863228, at *1 (D. Me. Mar. 3, 2000) (citing Nelson v. Univ. of Me. Sys., 914 F.Supp. 643, 646-47 (D. Me. 1996) and Coolidge v. Judith Gap Lumber Co., 808 F.Supp. 889, 893 (D. Me. 1992)). “It is appropriate for the court to grant a 12(f) motion to strike a defense only if the defense is legally insufficient and presents no question of law or fact that the court must resolve.” Johnson v. Chrysler Corp., 187 F.R.D. 440, 441 (D. Me. 1999) (emphasis added). A defense is legally insufficient to the extent that striking it may be appropriate when it is “clearly apparent . . . that the movant would succeed despite any state of facts which could be proved in support of the defense.” United States v. Conagra Grocery Prods. Co., LLC, No. 2:11-cv-455-NT, 2012 WL 3137436, at *1 (D. Me. July 31, 2012) (internal quotation marks omitted); see also Coolidge, 808 F.Supp. at 893 (court may strike “only those defenses so legally insufficient that it is beyond cavil that the defendants could not prevail on them”) (internal quotation marks omitted); Tobin, 2000 WL 863228, at *1 (determining that a defense is not legally insufficient because “Defendants may later prove facts to support the defense”). In general, “[w]here there are disputed issues of fact or substantial issues of law, a motion to strike should not be used to test the merits of the defense; close or new questions of law and disputed factual issues should await a full hearing on the merits.” In re All Maine Asbestos Litig., 575 F.Supp. 1375, 1377 (D. Me. 1983). This is consistent with the Court's practice of avoiding “tamper[ing] with the pleadings unless there is a strong reason for so doing.” Sebunya v. Holder, No. 2:12-cv-67-GZS, 2012 WL 5993160, at *1 (D. Me. Nov. 30, 2012) (internal quotation omitted). Further, “[a]n affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives plaintiff fair notice of the nature of the defense.”[1] White v. Spurwink Servs., Inc., No. 2:12-cv-117-GZS, 2012 WL 3138865, at *1 (D. Me. July 31, 2012) (internal quotation marks omitted).

         When appropriate, however, winnowing out legally insufficient defenses by granting a motion to strike may help clarify the issues in dispute and avoid prejudice to the plaintiff created by having to respond to meritless defenses.[2] See New York v. Am. Elec. Power Serv. Corp., Nos. 2:04 CV 1098, 2:05 CV 360, 2006 WL 1331543, at *1 (S.D. Ohio Mar. 21, 2006) (“Such a motion is also proper if it aids in eliminating spurious issues before trial, thereby streamlining the litigation.”) (internal quotation marks omitted); see also Shaub & Williams, L.L.P. v. Augme Techs., Inc., No. 13 Civ. 1101(GBD), 2014 WL 625390, at *7 (S.D.N.Y. Feb. 14, 2014) (noting that “[i]nclusion of [] invalid defenses risks prejudice to a plaintiff due to increased time and expense of litigation”). With these principles in mind, the Court turns to the individual affirmative defenses that are the subject of the Government's Motion.

         III. DISCUSSION

         A. Affirmative Defenses 1, 20, and 21

         The Government moves to strike Defendant's Affirmative Defenses 1 (“The Complaint fails to state a claim upon which relief can be granted”); 20 (“The violations alleged are unenforceable because they are vague”); and 21 (“The violations alleged are unenforceable because they are overbroad”). Pursuant to Federal Rule of Civil Procedure 8(a)(2), a plaintiff must plead a “short and plain statement” demonstrating a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This Court will strike an affirmative defense of failure to state a claim if the plaintiff has put forward a well-pleaded claim. Johnson, 187 F.R.D. at 441 (“Plaintiff's Complaint sets forth a short and plain statement showing that the pleader is entitled to relief. Because there is no factual issue or issue of law to be resolved before the validity of this defense in the present context may be determined, the Court will strike Chrysler's first affirmative defense.”). In this case, as outlined by the Government in its Memorandum of Law in support of its Motion and in its Reply (Gov't Mem. at 2-3; Gov't Reply at 6), it has pleaded the essential elements of facially plausible claims under the Clean Water Act for specific violations. Therefore, the Court GRANTS the Government's Motion as to Affirmative Defenses 1, 20, and 21.[3]

         B. Affirmative Defenses 2, 4, 11, 12, 13, 14, 15, 16, 22, 24, and 29

         The Government moves to strike Defendant's Affirmative Defenses 2 (“The Court lacks jurisdiction under the provisions of the Clean Water Act”); 4 (“Plaintiff lacks standing to bring this action”); 11 (“Enforcing the Clean Water Act in the manner sought by Plaintiff would violate the Commerce Clause of the Constitution”); 12 (“Enforcing the Clean Water Act in the manner sought by Plaintiff would constitute an unconstitutional taking”); 13 (“Enforcing the Clean Water Act in the manner sought by Plaintiff would violate due process”); 14 (“The relief sought by Plaintiff is wholly disproportionate to the alleged noncompliance”); 15 (“Enforcing the Clean Water Act in the manner sought by Plaintiff would violate federalism principles”); 16 (“The relief sought by Plaintiff is not permitted under the Clean Water Act”); 22 (“The Plaintiff's interpretation and conduct is ultra vires”); 24 (“The Plaintiff is improperly applying the statutory enforcement provisions required when attempting to assess civil penalty amounts”); and 29 (“Plaintiff is attempting to enforce the Clean Water Act in a manner which is contrary to the enforcement approach of the State of Maine in these matters”).

         The Government contends that “[t]hese broad facial challenges do not appear to depend on facts that are unique to this case, and the defendant has not suggested any such facts.” (Gov't Reply at 3.) Although the Government may indeed be correct that “it is unlikely that discovery between the parties will yield information relevant to these well-settled legal matters” (id.) (emphasis added), unlikelihood is not enough. To strike these defenses, the Court must determine that the Government will prevail “despite any state of facts which could be proved in support of the defense, ” Conagra Grocery Prods., 2012 WL 3137436, at *1 (emphasis added) (internal quotation marks omitted), and that these defenses “present[] no question of law or fact that the court must resolve, ” Johnson, 187 F.R.D. at 441 (emphasis added). At this early stage of the proceeding, it would be premature to make that determination. In addition, the Court does not believe that the Government will be prejudiced by having to engage in discovery and further argument on issues that will be central to proving its claims regardless of whether or not these issues are raised as affirmative defenses. Therefore, the Court DENIES the Government's Motion as to Affirmative Defenses 2, 4, 11, 12, 13, 14, 15, 16, 22, 24, and 29.

         C. ...


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