1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 D. MALAMA CHOCK No. 1:21-cv-00996-KES-CDB 13 Plaintiff, 14 v. ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFF’S MOTION

15 STRYKER CORPORATION, et al., TO STRIKE 16 Defendants. Doc. 17 17

18 19 This action concerns plaintiff D. Malama Chock’s tort claims for strict and negligent 20 products liability against defendant Stryker Corporation (“Stryker”). Chock alleges that Stryker 21 defectively manufactured a Model 427010 compression plate that, in January 2019, was 22 surgically implanted in her right arm. See generally Doc. 8 (“FAC”). Chock asserts that the 23 implant ruptured three months later, causing her serious injuries, pain and suffering, and lost 24 earnings. See generally id. Before the Court is Chock’s motion to strike affirmative defenses in 25 Stryker’s amended answer and motion to deem certain allegations by Chock as admitted, filed on 26 September 1, 2021. Doc. 17. Stryker filed an opposition, and Chock filed a reply. Docs. 21, 22. 27 For the reasons explained herein, Chock’s motion is granted in part and denied in part. 28 1 I. Legal Standard 2 A. Motion to Strike 3 Pursuant to Rule 12(f), the Court may strike from an answer “an insufficient defense or 4 any redundant, immaterial, impertinent, or scandalous matter.” An affirmative defense may be 5 insufficient “either as a matter of law or as a matter of pleading.” Dodson v. Strategic 6 Restaurants Acquisition Co., 289 F.R.D. 595, 603 (E.D. Cal. 2013). “Legal insufficiency means 7 that the affirmative defense lacks merit ‘under any set of facts the defendant might allege.’ 8 Pleading insufficiency means a failure to provide the plaintiff with fair notice.” Id. (internal 9 citations omitted). An affirmative defense must give fair notice of the defense pled. Wyshak v. 10 City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979). 11 In Kohler v. Flava Enterprises, Inc., 779 F.3d 1016 (9th Cir. 2015), the Ninth Circuit 12 continued to apply the “fair notice” standard to affirmative defenses. Id. at 1019 (“[T]he ‘fair 13 notice’ required by the pleading standards only requires describing the defense in ‘general 14 terms.’”). While Kohler did not address any tension with Twombly and Iqbal’s “plausible on its 15 face” standard for complaints,1 courts in this district have interpreted Kohler as reflecting that 16 Wyshak’s “fair notice” standard continues to apply to affirmative defenses. See Gomez v. J. 17 Jacobo Farm Lab. Contractor, Inc., 188 F. Supp. 3d 986, 991–92 (E.D. Cal. 2016) (collecting 18 cases). The Court likewise applies the “fair notice” pleading standard to defendants’ affirmative 19 defenses in this case. 20 “Fair notice . . . requires that the defendant state the nature and grounds of the affirmative 21 defense. Although ‘fair notice’ is a low bar that does not require great detail, it does require a 22 defendant to provide ‘some factual basis’ for its affirmative defenses.” Id. at 992 (internal 23 citations omitted). Generally, “simply referring to a doctrine or statute is insufficient to afford 24 fair notice.” Id.; see also Board of Trustees of IBEW Local Union No. 100 Pension Trust Fund 25 v. Fresno’s Best Indus. Elec., Inc., 2014 WL 1245800, at *4 (E.D. Cal. Mar. 24, 2014) (“Simply 26 identifying an affirmative defense by name does not provide fair notice of the nature of the 27 1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 28 (2009), establishing a “plausible on its face” standard as to allegations of a complaint. 1 defense or how it applies in [an] action . . .”); Wyshak, 607 F.2d at 827 (holding that fair notice 2 standard requires more than a bare recitation of the doctrine at issue). That said, “[f]or well- 3 established [affirmative] defenses, merely naming them may be sufficient.” Springer v. Fair 4 Isaac Corp., No. 14-cv-02238-TLN-AC, 2015 WL 7188234, at *4 (E.D. Cal. Nov. 16, 2015) 5 (denying plaintiff’s motion to strike affirmative defenses such as laches, estoppel, and release 6 where the “affirmative defenses [were] stated in a brief manner using general terms.”). 7 B. Motion to Deem Allegations Admitted 8 Pursuant to Rule 8(b), “[i]n responding to a pleading, a party must: (A) state in short and 9 plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations 10 asserted against it by an opposing party.” Rule 8(b)(6) states that “[a]n allegation—other than 11 one relating to the amount of damages—is admitted if a responsive pleading is required and the 12 allegation is not denied.” 13 II. Discussion 14 Chock moves to strike Stryker’s first, second, third, fourth, eighth, ninth, and tenth 15 affirmative defenses. Chock also moves to deem certain allegations in her complaint as 16 admitted. The Court addresses each in turn. 17 A. First Affirmative Defense: Barred by Statute of Limitations 18 Stryker’s first affirmative defense, that Chock’s complaint is barred by all applicable 19 statutes of limitations, is insufficient. Stryker fails to identify the relevant statutes of limitations. 20 See Crook v. San Bernardino Cnty. Sheriff’s Dep’t, No. EDCV 23-02448 JVS (AS), 2024 WL 21 3469042, at *4 (C.D. Cal. June 13, 2024) (collecting cases striking affirmative defenses that 22 simply state that the action “is barred by the applicable statutes of limitations” without 23 identifying the specific statute”); see also Wyshak, 607 F.2d at 827 (statute of limitations 24 adequately pled when amended answer identified specific statute of limitations). Accordingly, 25 Stryker’s first affirmative defense is stricken without prejudice. 26 B. Second Affirmative Defense: Failure to State a Claim 27 Stryker’s second affirmative defense, that Chock fails to state a claim, is not 28 appropriately alleged as an affirmative defense. “Failure to state a claim is an assertion of a 1 defect in plaintiffs’ prima facie case.” IBEW, 2014 WL 1245800, at *4; see also Barnes v. AT & 2 T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174 (N.D. Cal. 2010) 3 (“Failure to state a claim is a defect in the plaintiff’s claim; it is not an additional set of facts that 4 bars recovery notwithstanding the plaintiff’s valid prima facie case. Therefore, it is not properly 5 asserted as an affirmative defense.”) (quoting Boldstar Tech., LLC v. Home Depot, Inc., 517 F. 6 Supp. 2d 1283, 1291 (S.D. Fla. 2007)). Accordingly, Stryker’s second affirmative defense is 7 stricken without leave to amend. 8 C. Third and Fourth Affirmative Defenses: Mitigation of Damages and 9 Comparative Negligence 10 Chock argues that Stryker’s third and fourth affirmative defenses fail both pleading 11 sufficiency and legal sufficiency. Stryker’s third affirmative defense asserts that Chock “failed 12 to exercise reasonable case and diligence to mitigate damages, if any.” Doc. 14 at 7. Stryker’s 13 fourth affirmative defense argues that Chock was comparatively negligent. Id. While each of 14 these affirmative defenses merely state legal doctrines, they are well-established defenses that do 15 not require additional factual detail. Moreover, at the pleading stage, it is difficult “to conceive 16 what additional facts could be offered to support Stryker’s position.” Springer, 2015 WL 17 7188234, at *4; see id. (“Such facts should be obtained through the due course of discovery.”). 18 Accordingly, Stryker’s third and fourth affirmative defenses are sufficiently pleaded. 19 The Court must also consider Chock’s contention that Stryker’s third and fourth 20 affirmative defenses are legally insufficient—that is, whether they lack merit “under any set of 21 facts the defendant might allege.” Dodson, 289 F.R.D. at 603. Chock argues that Stryker’s third 22 affirmative defense—comparative negligence—and its fourth affirmative defense—duty to 23 mitigate—are legally insufficient because Chock’s alleged negligence is not a defense to a strict 24 liability claim. Doc. 17 at 9. However, in addition to her products liability claim under a theory 25 of strict liability, Chock brings a products liability claim under a theory of negligence. Doc. 8 at 26 7; see Chavez v. Glock, Inc., 207 Cal. App. 4th 1283, 1302–05 (2012) (distinguishing the causes 27 of action under California law for both strict product liability and negligent product liability). 28 Mitigation of damages and comparative negligence are both proper affirmative defenses 1 in negligence actions. See Shaffer v. Debbas, 17 Cal. App. 4th 33, 41 (1993) (“A plaintiff who 2 suffers damage as a result of . . . a tort has a duty to take reasonable steps to mitigate those 3 damages and will not be able to recover for any losses which could have thus been avoided.”); 4 Bruno v. Equifax Info. Servs., LLC, No. 2:17-0327-WBS-EFB, 2017 WL 2833393, at *3 (E.D. 5 Cal. June 30, 2017) (discussing both mitigation of damages and comparative negligence as 6 proper affirmative defenses in a negligence cause of action). While, in discovery, facts could 7 arise that suggest that Chock could not have mitigated her damages or could not have been 8 comparatively negligent, the Court declines to rule, at the pleading stage, that such a defense 9 fails as a matter of law. See LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. 10 Cal. 1992) (“Motions to strike are generally not granted unless it is clear that the matter to be 11 stricken could have no possible bearing on the subject matter of the litigation.”). Accordingly, 12 Chock’s motion to strike Stryker’s third and fourth affirmative defenses is denied. 13 D. Eighth and Ninth Affirmative Defenses: Release and Estoppel 14 Stryker’s eighth affirmative defense asserts that Chock’s complaint is “barred by the 15 doctrines of informed consent and release.” Id. at 8. And its ninth affirmative defense asserts 16 that Chock’s complaint is “barred by the equitable doctrine of estoppel.” Id. Like Stryker’s 17 third and fourth affirmative defenses, release and estoppel are well-established affirmative 18 defenses that, at the pleading stage, do not require additional factual detail, to be sufficiently 19 pleaded. See Springer, 2015 WL 7188234, at *4 (denying motion to strike release and estoppel 20 defenses which solely stated the legal doctrine). Accordingly, Chock’s motion to strike 21 Stryker’s eighth and ninth affirmative defenses is denied. 22 E. Tenth Affirmative Defense: Reservation of Right to Assert Other Defenses 23 Stryker’s tenth affirmative defense states that it “reserves the right to allege other new 24 matters constituting a defense as may become known through the course of discovery.” Doc. 14 25 at 8. “[A] formal ‘reservation’ of the right to bring further defenses, strictly speaking, serves no 26 purpose because [Stryker] retains the right to add defenses through a properly filed motion to 27 amend.” J & J Sports Prods., Inc. v. Romero, No. 1:11-cv-1880-AWI-BAM, 2012 WL 28 2317566, at *4 (E.D. Cal. June 18, 2022). Accordingly, Stryker’s reservation clause is not a 1 proper affirmative defense and is stricken without leave to amend. 2 F. Motion to Deem Certain Allegations as Admitted 3 Chock moves to admit several allegations in her complaint. First, Chock alleges that 4 paragraph two of Stryker’s answer, where it admits it “is a Michigan corporation with its 5 principal place of business in Michigan,” Doc. 14 ¶ 2, did not adequately address Chock’s 6 contention in paragraph two of her first amended complaint, that Stryker “is and was a 7 corporation duly organized in the State of Michigan.” FAC ¶ 2 (emphasis added); Doc. 17-1 at 8 5. In its opposition, Stryker does not dispute that it has been at all times relevant to the litigation 9 a Michigan corporation. Doc. 21 at 8. Therefore, the Court deems this allegation admitted. 10 Chock also takes issue with Stryker’s inclusion at several points in the answer, ¶¶ 27, 28, 11 32, 34, that the identified document “speaks for itself.” Chock therefore moves to deem such 12 paragraphs admitted. While such a response, standing alone, does not pass muster under Rule 8, 13 Stryker accompanied each of those responses with an admission of the allegation. See Doc. 14 14 ¶¶ 27, 28, 32, 34. The statement that the document “speaks for itself” seems to serve as a 15 conditional admission, admitting that the document exists, but allowing the parties to dispute the 16 contents of the referenced document as the litigation proceeds. Therefore, the response satisfies 17 the requirements of Rule 8(b)(1), and there is no basis to deem the allegations admitted. See 18 Barnes, 718 F. Supp. 2d at 1175. Accordingly, Chock’s motion to deem such allegations 19 admitted is denied. 20 III. Conclusion and Order 21 For the reasons explained above: 22 1. Chock’s motion to strike, Doc. 17, is GRANTED IN PART and DENIED IN PART 23 as follows: 24 a. Chock’s motion to strike Stryker’s second and tenth affirmative defenses is 25 GRANTED without leave to amend; 26 b. Chock’s motion to strike Stryker’s first affirmative defense is GRANTED 27 with leave to amend; 28 c. Chock’s motion to strike Stryker’s third, fourth, eighth, and ninth affirmative 1 defenses is DENIED; 2 2. Chock’s motion to deem certain allegations admitted, Doc. 17, is GRANTED IN 3 PART AND DENIED IN PART. It is GRANTED as to Chock’s allegation in 4 paragraph two of its first amended complaint, and DENIED as to Chock’s allegations 5 in paragraphs twenty-seven, twenty-eight, thirty-two, and thirty-four of the first 6 amended complaint; and 7 3. Stryker may file an amended answer within thirty days from the date of this Order, 8 repleading Stryker’s first affirmative defense (statute of limitations). 9 10 11 | TPIS SO ORDERED. _ 12 Dated: _ June 30, 2025 4h 3 UNITED STATES DISTRICT JUDGE

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