Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 1 of 12 PageID #:331

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ADRIAN ARRINGTON, DEREK OWENS, MARK TURNER, and ANGELA PALACIOS, individually and on behalf of all others similarly situated, Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 11-cv-06356 Hon. Sharon Johnson Coleman Magistrate Judge Brown

PLAINTIFFS MOTION TO STRIKE AFFIRMATIVE DEFENSES Plaintiffs Adrian Arrington, Derek Owens, Mark Turner, and Angela Palacios (collectively, Plaintiffs), by their undersigned counsel, move to strike certain of Defendant National Collegiate Athletic Associations (the NCAA or Defendant) affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f). Rule 12(f) provides that, upon a motion made by a party, [t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). As explained below, the NCAAs defenses should be stricken because they either fail federal pleading standards, they are not cognizable affirmative defenses, or they are legally deficient. In further support of this Motion, Plaintiffs state the following: I. All of the NCAAs Affirmative Defenses Fail to Plead Sufficient Facts and Must Be Stricken. First, because affirmative defenses are subject to the same standards as other pleadings, the NCAA must plead facts sufficient to bring the claim within the scope of the stated defense. In particular, courts in this District recognize that general pleading standards apply equally to

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 2 of 12 PageID #:332

affirmative defenses. See State Farm Fire & Cas. Co. v. Electrolux Home Prods., Inc., 2011 U.S. Dist. LEXIS 3674, at *4-5 (N.D. Ill. Jan. 14, 2011); Kimbrew v. Advocate Health & Hosps. Corp., 2010 U.S. Dist. LEXIS 136330,1 at *3 (N.D. Ill. Dec. 8, 2010) (holding that the SeventhCircuit has noted that affirmative defenses are pleadings and subject to the pleading requirements of the Federal Rules of Civil Procedure, and striking the defendants affirmative defenses that lacked sufficient facts).2 These recent cases are consistent with the longstanding principle applied in this Circuit, i.e., that a defendants mere reference to defense without setting forth both the elements of those defenses or the factual bases for the defenses, should be stricken. Renalds v. S.R.G. Restaurant Group, 119 F. Supp. 2d 800, 803-04 (N.D. Ill. 2000). See also Heller, 883 F.2d at 1295 (Bare legal conclusions are never sufficient, and district courts have considerable discretion under Rule 12(f) to strike claimed defenses that do not give fair notice and merely clutter the pleadings.); Codest Engg v. Hyatt Intl Corp., 954 F. Supp. 1224, 1230 (N.D. Ill. 1996). Here, each of the NCAAs thirty-two asserted affirmative defenses fail the notice pleading standard. The defenses are stated as legal conclusions, without any indication of why or how the legal doctrines cited in the defense would apply to this case.3

1 2

Each of the unpublished opinions cited in this Motion are attached as Exhibit A hereto.

See also On Command Video Corp. v. Roti, 2010 U.S. Dist. LEXIS 42715, at *4 (N.D. Ill. Apr. 30, 2010) (striking the defendants affirmative defenses for failure to plead sufficient facts); Bank of Montreal v. SK Foods, LLC, 2009 U.S. Dist. LEXIS 106577, at *8 (N.D. Ill. Nov. 13, 2009) (striking the defendants mistake affirmative defense for failure to plead facts according to the general pleading standards). For example, the NCAAs twenty-third affirmative defense states: The claims of Plaintiffs and/or members of the proposed classes may be barred, in whole or in part, to the extent they have failed to mitigate damages. Although failure to mitigate damages is proper under the rules, the lack of any factual foundation is fatal. Palomares v. Second Fed. Sav. & Loan Ass'n of Chicago, 2011 U.S. Dist. LEXIS 56949, at *8 (N.D. Ill. May 25, 2011) (Coleman J.) (In affirmative defense 2, [the defendant] alleges that the Plaintiffs claims for monetary relief are barred to the extent that the Plaintiffs failed to mitigate their damages. [The defendant] provides no factual support for this defense to explain what steps
3

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 3 of 12 PageID #:333

In several instances, the NCAA fails to state that the affirmative defenses actually are applicable, casting them instead as hypotheticals.4 This is wholly improper. See Groupon Inc. v. MobGob LLC, 2011 U.S. Dist. LEXIS 56937, at *11 (N.D. Ill. May 25, 2011) ([I]n its affirmative defense [the defendant] simply suggests that [the plaintiff] lacks standing [t]o the extent that [it] does not own all the rights to the ... Patent. Nowhere does [the defendant] affirmatively allege that [the plaintiff] does not own the patent. Thus, the defense lacks the factual support necessary to survive a motion to strike.); Surface Shields, Inc. v. Poly-Tak Prot. Sys., Inc., 213 F.R.D. 307, 308 (N.D. Ill. 2003) (striking a number of affirmative defenses because in no instance does [the defendant] attempt to explain why these doctrines or actions would provide it with a defense [or] allege any specific facts which might support its conclusions.). In sum, the NCAA failed to plead its defenses with the requisite supporting factual allegations. Each one should accordingly be stricken. II. Eighteen of the NCAAs Affirmative Defenses are Not Cognizable Affirmative Defenses and Thus Should Be Stricken. In addition to the deficiencies identified in Section I above, a number of the NCAAs purported affirmative defenses are not, in fact, cognizable affirmative defenses. The fact that the NCAA has labeled its defenses affirmative defenses does not make it so. An affirmative
Plaintiffs could have taken to mitigate their damages. Nor has [the defendant] established that Plaintiffs had a duty to mitigate their damages. The second affirmative defense is merely a bare bones conclusory allegation that does not meet the pleading requirements of Rule 8(a). The Court hereby strikes this deficient defense.). For example, the NCAAs twenty-sixth affirmative defense states: If in this or other tribunals Plaintiffs and/or members of the proposed classes have settled, or are in the process of settling, the same or similar claims to those alleged in the Consolidated Complaint, they may be barred from recovery, in whole or in part, by such settlements. (emphasis added). The same sort of conditional or speculative language is used in the NCAAs eleventh, twelfth, thirteenth, fourteenth, sixteenth, twenty-first, twentysecond, twenty-third, twenty-fourth, twenty-sixth, twenty-eighth, thirtieth, and thirty-first affirmative defenses. However, such speculative musings do not meet the NCAAs pleading obligations.
4

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 4 of 12 PageID #:334

defense generally admits the matters alleged in a complaint but brings up some other reason why the plaintiff has no right to recovery. McMahon Food Corp. v. Burger Dairy Co., 1993 U.S. Dist. LEXIS 8080, at *4-5 (N.D. Ill. June 10, 1993). Since many of the NCAAs affirmative defenses either deny the matters in the Complaint or assert matters that do not bar Plaintiffs recovery, they must be stricken. A. The First Affirmative Defense (Failure to State a Claim) As recognized by courts in this District, the NCAAs boilerplate affirmative defense of failure to state a claim, must be stricken because it is not a cognizable affirmative defense. See, e.g., Hayes v. Agilysys, Inc., 2009 U.S. Dist. LEXIS 26762, at *3 (N.D. Ill. Mar. 30, 2009) (striking the defendants affirmative defense for failure to state a claim because it was not an affirmative defense, saying an affirmative defense must do something more than enunciate the standard for dismissal under Rule 12(b(6).); Thomas v. Exxon Mobil Corp., 2009 U.S. Dist. LEXIS 11109, at *5 (N.D. Ill. Feb. 11, 2009) (This Court has made clear that an affirmative defense may not simply restate the standard for dismissal under Rule 12(b)(6).). Even though the NCAA did not move to dismiss, the NCAA merely states the standard for dismissal under Rule 12 without providing any reasons why relief cannot be granted for any claim in the complaint. The NCAAs deficiency is particularly problematic as Plaintiffs have stated more than one claim. See Convergence Aviation, Ltd. v. United Techs. Corp., 2011 U.S. Dist. LEXIS 37772, at *6 (N.D. Ill. Apr. 7, 2011) (If the defense does not explain why plaintiffs fail to state a claimand where more than one count has been pleadedthen a reasonable inference cannot be drawn as to the specific infirmities defendants are referencing.). The NCAAs first affirmative defense should therefore be stricken. B. The Fourth Affirmative Defense (The Contact Sports Exception) For its fourth affirmative defense, with nothing more, the NCAA states that the Plaintiffs 4

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 5 of 12 PageID #:335

claims are barred in whole or in part, under the contact sports exception to the ordinary standard of care. First, the contact sport exception does not apply to the NCAA. See, e.g., Gvillo v. DeCamp Junction, Inc., 2011 Ill. App. LEXIS 1128, at *16 (Oct. 31, 2011) (refusing to apply the contact sport exception to an organization because the conduct complained of was not coaching or officiating decisions made in the middle of a fast-moving game.). Second, even if the exception applied, the contact sports exception is not an affirmative defense. Karas v. Strevell, 884 N.E.2d 122, 131 (Ill. 2008) ([T]he [contact sport] exception is not an affirmative defense.). As such, the fourth affirmative defense should be stricken. C. The Fifth Affirmative Defense (Failure to Plead Fraud With Particularity) The NCAAs fifth affirmative defense failure to plead the fraudulent concealment claim with particularity as required by Fed. R. Civ. P. 9(b) is, again, not properly pled as an affirmative defense. The proper remedy for failure to plead fraud with particularity is not dismissal of the claims or striking of the pleading, but allowance of a motion for a more definite statement, an amendment under Rule 15, or the use of the discovery procedures. Molex Inc. v. Wyler, 365 F. Supp. 2d 901, 912 (N.D. Ill. 2005) (citing CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND

PROCEDURE: CIVIL 3d 1291, 16 (2004)). As such, the

NCAAs fifth affirmative defense should be stricken. D. The Sixth, Seventh, Eighth, Twelfth, Fifteenth and Sixteenth Affirmative Defenses (Elemental Attacks) The NCAAs deficient sixth, seventh, and eighth affirmative defenses are all variations on the same theme: Plaintiffs cannot prove all of the elements of fraudulent concealment. 5

The NCAAs sixth affirmative defense states: The claim in Plaintiffs Consolidated Complaint for fraudulent concealment is barred, in whole or in part, because Plaintiffs cannot meet their burden of showing that any acts, conduct, statements or omissions on the part of the NCAA were likely to mislead.
5

The NCAAs seventh affirmative defense states: The claim in Plaintiffs Consolidated

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 6 of 12 PageID #:336

Similarly, the twelfth affirmative defense attacks the elements of unjust enrichment, stating that Plaintiffs unjust enrichment claim is barred because the NCAA retained no benefit from Plaintiffs or that Plaintiffs had no expectation of compensation. The NCAAs attack on

Plaintiffs prima facie case continues with the fifteenth and sixteenth affirmative defenses, which claim, respectively, that Plaintiffs claims for equitable relief are barred because they have an adequate remedy at law and that Plaintiffs suffered no injury. All of these affirmative defenses fail for the same reason: a claim which simply controverts an element of a plaintiffs prima facie case is not considered . . . an affirmative defense. Duncan v. Consol. Freightways Corp. of Delaware, 1995 U.S. Dist. LEXIS 12964, at *11 (N.D. Ill. Sept. 7, 1995). See also Thomas, 2009 U.S. Dist. LEXIS 11109, at *4-5 (Because each of these affirmative defenses is nothing more than a mere denial of the allegations in the complaint, they are inappropriately pleaded as affirmative defenses, and the Court grants the motion to strike them.); Sterten v. Option One Mortg. Corp., 479 F. Supp. 2d 479, 483 (E.D. Pa. 2007), aff'd sub nom., 546 F.3d 278 (3d Cir. 2008) ([A] matter that merely negates an element of the plaintiffs prima facie case is not an affirmative defense.); Sanden v. Mayo Clinic, 495 F.2d 221, 224 (8th Cir. 1974) ([I]f the defense involved is one that merely negates an element of the plaintiffs prima facie case it is not truly an affirmative defense.). The NCAAs sixth, seventh, eighth, twelfth, fifteenth, and sixteenth affirmative defenses should therefore be stricken.

Complaint for fraudulent concealment is barred, in whole or in part, because the information the NCAA allegedly concealed was publicly available. The NCAAs eighth affirmative defense states: The claim in Plaintiffs Consolidated Complaint for fraudulent concealment is barred, in whole or in part, because Plaintiffs and/or members of the proposed classes were not actually mislead or deceived by and/or did not rely upon any statements or omissions on the part of the NCAA in deciding whether to participate in sports at their respective colleges or universities.

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 7 of 12 PageID #:337

E. The Tenth and Eleventh Affirmative Defenses (No Causation) The NCAAs tenth and eleventh affirmative defenses attack the NCAAs role as the proximate cause of Plaintiffs injuries.6 Such attacks are not affirmative defenses. Ocean Atl. Dev. Corp. v. Willow Tree Farm LLC, 2002 U.S. Dist. LEXIS 5465, at *15 (N.D. Ill. Mar. 29, 2002) (Affirmative defenses 6 and 7, lack of causation, merely deny an element of [the plaintiffs] claims and, therefore, are stricken.) (citing Resolution Trust Corp. v. KPMG Peat Marwick, 845 F. Supp. 621, 625 (N.D. Ill. 1994) (The defendants are free to assert at trial that their actions were not the proximate cause of [the plaintiffs] losses. But an assertion of this type is not an affirmative defense; it is an assertion that [the plaintiff] cannot prove a necessary element of its claim.)); Eggmann v. Myers, 2009 U.S. Dist. LEXIS 110468, at *8 (S.D. Ill. Sept. 24, 2009), report and recommendation adopted in part, 2009 LEXIS 99679 (S.D. Ill. Oct. 27, 2009) (striking both of the defendants affirmative defenses attacking proximate causation, stating that the claims were not affirmative defenses but were rather reason[s] why a jury might find that plaintiff has not proved the duty and proximate cause elements of the [claim].).7 The NCAAs tenth and eleventh affirmative defenses should therefore be stricken.

The NCAAs tenth affirmative defense states: Plaintiffs and/or persons claiming to be members of the proposed classes are barred from recovery, in whole or in part, because their injuries resulted from the intervening cause of another party.
6

The NCAAs eleventh affirmative defense states: The claims of Plaintiffs and/or one or more members of the proposed classes are barred, in whole or in part, to the extent that any injury sustained by Plaintiffs and/or members of the proposed classes was caused by their own conduct, whether negligent or otherwise. Further demonstrating the NCAA failures, the association does not identify another party who was supposedly the intervening cause barring Plaintiffs recovery, another fatal flaw to the defense. See Carretta v. May Trucking Co., 2010 U.S. Dist. LEXIS 26302, at *6 (S.D. Ill. Mar. 11, 2010) (The defense also references some other tortfeasor, without any suggestion of a factual basis for such a claim. The drafting errors alone render this affirmative defense too unintelligible to proceed as drafted.).
7

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 8 of 12 PageID #:338

F. The Seventeenth, Eighteenth, Nineteenth, Twentieth and Twenty-Ninth Affirmative Defenses (Propriety of Class Action) The NCAAs seventeenth, eighteenth, nineteenth, twentieth and twenty-ninth affirmative defenses all attack the propriety of litigating this action on a class-wide basis.8 This defense fits squarely within the definition of legally insufficient even if it were true that certification was not possible or appropriate, Plaintiffs claim would still stand individually. Moreover, assertions that claims are not appropriate for class treatment are not affirmative defenses and will be resolved in the Rule 23 certification proceedings. Hernandez v. Balakian, 2007 U.S. Dist. LEXIS 43680, at *26 (E.D. Cal. June 1, 2007) (noting, however, that striking the affirmative defense was an empty formalism because the defense would not be considered by the court). Therefore, these affirmative defenses should be stricken. G. The Thirty-First Affirmative Defense (Lack of Standing) NCAA claims in its thirty-first affirmative defense that Plaintiffs claims are barred to
The NCAAs seventeenth affirmative defense states: The claims in Plaintiffs Consolidated Complaint are not properly maintained as a class action, because the requirements for class certification under federal law have not been met.
8

The NCAAs eighteenth affirmative defense states: The claims in Plaintiffs Consolidated Complaint are not properly maintained as a class action, because certification of the proposed classes would result in a denial of due process to the NCAA as well as to members of the proposed classes, including, inter alia, by violating due process through applying the law of select jurisdictions to a nationwide class. The NCAAs nineteenth affirmative defense states: The claims in Plaintiffs Consolidated Complaint are not appropriate for class treatment because the claims necessarily turn on individual issues, including, but not limited to: (i) each Plaintiffs and/or class members individual knowledge regarding the risk of concussions inherent in the sport he/she played; (ii) the causes of each Plaintiffs and/or class members alleged injury; and (iii) each Plaintiffs and/or class members alleged reliance on the NCAAs alleged misrepresentations. The NCAAs twentieth affirmative defense states: This action is not appropriate for class treatment because the claims in Plaintiffs Consolidated Complaint necessarily revolve around factors, parties and circumstances outside the control of the NCAA. The NCAAs twenty-ninth affirmative defense states: The proposed defendant class Plaintiffs seek to certify is not appropriate for class treatment because certification of the proposed class would violate the due process rights of its members.

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 9 of 12 PageID #:339

the extent that Plaintiffs lack standing. Courts in this District have determined that lack of standing is not a proper affirmative defense. See, e.g., De Lage Landen Financial Services, Inc. v. M.D.M. Leasing Corp., 2007 U.S. Dist. LEXIS 90569, at *8 (N.D. Ill. Dec. 10, 2007) (Because a plaintiff must plead and ultimately prove standing, lack of standing is not an affirmative defense under federal law.) (citing Native Am. Arts, Inc. v. The Waldron Corp., 253 F. Supp. 2d 1041, 1045 (N.D. Ill. 2003)); Huthwaite, Inc. v. Randstand Genl Partner (US), LLC, 2006 U.S. Dist. LEXIS 81363, at *25 (N.D. Ill. Oct. 24, 2006) (noting that lack of standing is not an affirmative defense under federal law and striking affirmative defense of standing with no opportunity to replead); Ocean Atl. Woodland Corp. v. DRH Cambridge Homes, Inc., 2003 U.S. Dist. LEXIS 4964, at *14 (N.D. Ill. Mar. 28, 2003) (Plaintiff argues that lack of standing is not an affirmative defense, and the Court agrees.). The thirty-first affirmative defense should therefore be stricken. H. Thirty-Second Affirmative Defense (Additional Defenses) NCAAs thirty-second affirmative defense reserves the right to add to its affirmative defenses. This, too, is improper. Catalina Mktg. Intl, Inc. v. Coolsavings.com, 2003 U.S. Dist. LEXIS 11487, at *7-8 (N.D. Ill. July 2, 2003) (striking the purported reservation of affirmative defenses, saying [i]t is not listed in Rule 8(c) as an affirmative defense; and pursuant to Rule 15(a), only the courts may grant leave to amend pleadings.). See also Hayes, 2009 U.S. Dist. LEXIS 26762, at *4 (The Defendants cannot simply abrogate the Rules of Federal Procedure and hold the Court hostage to their inclination to later amend their pleading. If the Defendants desire to add another affirmative defense, they may seek leave from the Court to do so. . .). Therefore, the thirty-second affirmative defense should be stricken.

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 10 of 12 PageID #:340

CONCLUSION For the above reasons, Plaintiffs request that the Court enter an Order granting Plaintiffs Motion to Strike Defendants Affirmative Defenses should be granted, and for such further relief that the Court deems appropriate. Date: January 11, 2012 Respectfully submitted, ADRIAN ARRINGTON, DEREK OWENS, MARK TURNER, and ANGELA PALACIOS, individually and on behalf of all others similarly situated

By:_______________________________ One of the Attorneys for Plaintiffs and the Proposed Putative Classes Joseph J. Siprut jsiprut@siprut.com Aleksandra M. S. Vold avold@siprut.com

SIPRUT PC
122 South Michigan Avenue Suite 1850 Chicago, Illinois 60603 312.588.1440 Fax: 312.878.1342 Elizabeth A. Fegan Daniel J. Kurowski HAGENS BERMAN SOBOL SHAPIRO LLP 1144 W. Lake St., Suite 400 Oak Park, IL 60301 708.628.4960 708.628.4950 (F) beth@hbsslaw.com dank@hbsslaw.com

10

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 11 of 12 PageID #:341

Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Ave., Suite 3300 Seattle, WA 98101 206.623.7292 206.623.0594 (F) steve@hbsslaw.com

Robert B. Carey HAGENS BERMAN SOBOL SHAPIRO LLP 11 West Jefferson, Suite 1000 Phoenix, AZ 85003 602.840.5900 602.840.3012 (F) rob@hbsslaw.com
4841-8688-9230, v. 1

11

Case: 1:11-cv-06356 Document #: 32 Filed: 01/11/12 Page 12 of 12 PageID #:342

CERTIFICATE OF SERVICE The undersigned, an attorney, hereby certifies that a true and correct copy of the foregoing Plaintiffs Motion to Strike Affirmative Defenses was filed this 11th day of January, 2012, via the electronic filing system of the Northern District of Illinois, which will automatically serve all counsel of record in this action.

_____________________________ Joseph J. Siprut

12