Hukman v. Terrible Herbst Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 SHEIDA HUKMAN, Case No. 2:21-cv-01279-ART-MDC 4 Plaintiff, ORDER v. [5] TERRIBLE HERBST, INC., [6] Defendant. [7] 8 Plaintiff Sheida Hukman brings this case against her former employer, 9 Terrible Herbst, alleging that Terrible discriminated against her, in violation of 10 the Equal Pay Act, Title VII of the Civil Rights Act of 1964, and Nevada state law. 11 Before the Court is Plaintiff’s objection (ECF No. 69) to an order by Magistrate 12 Judge Maximiliano D. Couvillier (ECF No. 67). That order denies Plaintiff’s motion 13 to strike (ECF No. 62) the affirmative defenses pled in Defendant’s Answer (ECF 14 No. 60) to Plaintiff’s Amended Complaint (ECF No. 38). The Court overrules in 15 part and sustains in part Plaintiff’s objection. 16 “A non-dispositive order entered by a magistrate must be deferred to unless 17 it is ‘clearly erroneous or contrary to law.’” Grimes v. City of San Francisco, 951 18 F.2d 236, 241 (9th Cir. 1991) (citing Fed. R. Civ. P. 72(a); 28 U.S.C. § 636 (b)(1)(A)); 19 see also LR IB 3-1(a). Denial of a motion to strike is non-dispositive. See, e.g., 20 Schrader v. Wynn, Case No. 2:19-cv-2159 JCM (BNW), 2021 WL 619376 , at *3 21 (D. Nev. Feb. 17, 2021); Williams v. Ryals, Case No. 3:21-cv-00133-ART-CLB, [22] 2022 WL 17820350 , at *6 (D. Nev. Dec. 20, 2022). A finding of fact is clearly 23 erroneous when the reviewing judge is “‘left with the definite and firm conviction 24 that a mistake has been committed.’” Easley v. Cromartie, 532 U.S. 234 , 242 25 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364 , 395 26 (1948)). In reaching this decision, “[a] reviewing court may not simply substitute 27 its judgement for that of the deciding court.” Grimes, 951 F.2d at 241. 28 Federal Rules of Civil Procedure 12(f) states that “the court may strike from 1 a pleading an insufficient defense or any redundant, immaterial, impertinent, or 2 scandalous matter.” Fed. R. Civ. P. 12(f). The purpose of Rule 12(f) is “to avoid 3 the expenditure of time and money that must arise from litigating spurious issues 4 by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft 5 Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 6 1524, 1527 (9th Cir. 1993), rev'd on other grounds, Fogerty v. Fantasy, Inc., 510 7 U.S. 517 , 114 S. Ct. 1023 , 127 L. Ed. 2d 455 (1994)). 8 Here, Judge Couvillier denied Plaintiff’s motion to strike because Plaintiff 9 had not shown that she would face prejudice absent that strike. (ECF No. 67 at 10 2); Roadhouse v. Las Vegas Metropolitan Police Dept., 290 F.R.D. 535, 543 (D. 11 Nev. 2013 ) (“Given their disfavored status, courts often require a showing of 12 prejudice by the moving party before granting the requested [motion to strike].”); 13 ARE-East River Science Park, LLC v. Lexington Insurance Company, CV 13-183714 JFW (JCGx), 2013 WL 12144098 , at * 1 (C.D. Cal. Apr. 16, 2013) (same). Judge 15 Couvillier also held that Defendant’s affirmative defenses had been properly pled 16 under the rules of civil procedure. (ECF No. 67 at 2-4.) Judge Couvillier’s order 17 was not clearly erroneous or contrary to law. 18 Plaintiff objects that her motion to strike clearly demonstrated that she 19 would face prejudice absent a strike. (ECF No. 69 at 1.) Plaintiff’s motion to strike 20 states “Plaintiffs will be prejudiced from allowing Affirmative Defenses through 21 later proceeding.” (ECF No. 62 at 2; see also id. at 4, 15 .) It does not elaborate or 22 explain how a failure to strike would lead to unfair prejudice. A mere conclusion 23 that “I will be prejudiced” is not enough to support a motion to strike. Nor did 24 Plaintiff’s motion demonstrate how Defendant’s affirmative defenses were 25 redundant, immaterial, impertinent, or scandalous under Fed. R. Civ. P. 12(f). 26 Plaintiff objects that Defendant should have pled its affirmative defenses 27 earlier in the litigation process. (ECF No. 69 at 1.) But a defendant generally need 28 not plead an affirmative defense before it has filed an answer. See Fed. R. Civ. P. 1 8(c); In re Cellular 101, Inc., 539 F.3d 1150, 1155 (9th Cir. 2008). Defendant’s 2 answer was timely filed 13 days after the resolution of its motion to dismiss. See 3 Fed. R. Civ. P. 12(a)(4) (setting a 14-day deadline for responsive filings following 4 the resolution of a motion); El v. San Diego Unified School District, No. 21-55805, [5] 2022 WL 1714284 , at *1 (9th Cir. 2022) (rejecting plaintiff’s “incorrect belief that 6 a defendant is required to file an answer prior to the resolution of a motion to 7 dismiss”). Plaintiff’s argument is also insufficient because it was never raised in 8 her original motion to strike. 9 Plaintiff objects that Defendant’s first affirmative defense, which argues 10 that Plaintiff has failed to state a claim upon which relief can be granted, is 11 precluded by this Court’s past order (ECF No. 59) on Defendant’s partial motion 12 to dismiss (ECF No. 38). Judge Couvillier’s order on Plaintiff’s motion to strike 13 addressed Defendant’s general ability to plead a 12(b)(6)-type argument as an 14 affirmative defense, but it did not address the preclusion issue. (See ECF No. 67 15 at 3-4.) This was clear error. The Court therefore partially sustains this portion 16 of Plaintiff’s objection. The Court’s order on Defendant’s partial motion to dismiss 17 addressed the sufficiency of some, but not all, of Plaintiff’s claims on 12(b)(6) 18 grounds. (ECF No. 59.) Defendant is precluded from applying its first affirmative 19 defense to any claim this Court has already deemed sufficient under Fed. R. Civ. 20 P. 12 (b)(6). Defendant may continue to assert its first affirmative defense against 21 any claim this Court has not already upheld on 12(b)(6) grounds. 22 Finally, Plaintiff objects that Defendant’s affirmative defenses do not set 23 forth a “short and plain statement” of the defense under Fed. R. Civ. P. 8(a). (ECF 24 No. 69 at 3.) Rule 8(a) sets the standards for pleading claims for relief and is not 25 applicable to Defendant’s affirmative defenses. See Fed. R. Civ. P. 8(a). Judge 26 Couvillier addressed a similar argument in his order and held that: (1) Fed. R. 27 Civ. P. 8(c) governs affirmative defenses; (2) under that standard, a defendant 28 need only provide fair notice of her defenses; and (3) Defendant’s answer has 1 || provided fair notice of its affirmative defenses. (ECF No. 67 at 2-3 (citing Conley 2 || v. Gibson, 355 U.S. 41 (1957))); see also FTC v. AMG Servs., No. 2:12-cv-5363 || GMN-VCF, 2014 WL 5454170 , at *7 (D. Nev. Oct. 27, 2014). This decision was 4 || neither clearly erroneous nor contrary to law. 5 The Court has considered Plaintiffs other objections, finds they are without 6 || merit, and declines to address them here. 7 It is therefore ordered that Plaintiff Sheida Hukman’s objection (ECF No. 8 || 69) to Judge Couvillier’s order (ECF No. 67) is overruled in part and sustained in 9 || part, in keeping with this order. [10] 11 Dated this 1st day of July 2024. [12] 18 Ans Posed de 14 ANNE R. TRAUM 15 UNITED STATES DISTRICT JUDGE