City of Elgin

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United States District Court, N.D. Illinois, Eastern DivisionFeb 26, 2001
Case No. 99 C 8288 (N.D. Ill. Feb. 26, 2001)

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Case No. 99 C 8288

February 26, 2001


This matter comes before the Court on Plaintiff's Motion to Strike Defendant City of Elgin' s Seventh Affirmative Defense. For the reasons stated herein, the Court DENIES Plaintiff's Motion.


On December 22, 1999, Plaintiff Daniel Johnson filed a four-count amended complaint against the City of Elgin and four officers in its police department. Plaintiff was employed by the City of Elgin as a police officer until he was terminated on June 22, 1999. Plaintiff claims that his termination resulted from discrimination in violation of Title VII.

On February 4, 2000, the City of Elgin filed its Answer to the amended complaint. Then on October 26, 2000, all the Defendants filed their "Amended Answer to Amended Complaint." In this Answer, they plead 7 affirmative defenses. The seventh affirmative defense states:

Plaintiff is not entitled to any relief for the period after August 29, 2000, when the City discovered that Plaintiff knew but failed to report to the city that a witness had lied to the City in the investigation of Plaintiff's conduct, a matter for which Plaintiff would have been discharged.

Plaintiff has moved to strike this affirmative defense pursuant to FED.R.CIV.P. 12(c).


FED.R.CIV.P. 12(c) provides in relevant part: "Upon motion made by a party . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

When considering an affirmative defense subject to a motion to strike, district courts follow a three-part test:

(1) the matter must be properly pleaded as an affirmative defense; (2) the matter must be adequately pleaded under the requirements of Federal Rules of Civil Procedure 8 and 9; and (3) the matter must withstand a Rule 12(b)(6) challenge — in other words, if it is impossible for defendants to prove a set of facts in support of the affirmative defense that would defeat the complaint, the matter must be stricken as legally insufficient.
Reynalds v. S.R.G. Restaurant Group, 119 F. Supp.2d 800, 802 (N.D.Ill 2000)(Alesia, J.).

Motions to strike affirmative defenses are generally disfavored because they potentially serve only to cause delay. Helter Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989). "Affirmative defenses will be stricken only when they are insufficient on the face of the pleadings." Id. "Ordinarily, defenses will not be struck if they are sufficient as a matter of law or if they present questions of law or fact." Id.


Plaintiff has moved to strike Defendants' seventh affirmative defense because it is allegedly "[l]egally and factually insufficient on it face, and is based upon frivolous and completely unsupported allegations." (Def. Mot. 2).

In Defendants' seventh affirmative defense, they seek to plead an "after-acquired evidence defense." The Seventh Circuit explained the "after-acquired evidence defense" in Sheehan v. Donlen Corporation, 173 F.3d 1039, 1046 (7th Cir. 1999). It explained:

An employer may be found liable for employment discrimination, but if the employer later — typically in discovery — turns up evidence of employee wrongdoing which would have led to the employee's discharge, then the employee's right to back pay is limited to the period before the discovery of this after-acquired evidence.

In his Motion to Strike, Plaintiff has attacked Defendants' ability to prove his defense. He argues that Defendants "have not and cannot produce evidence." Plaintiff has in turn laid out the facts which allegedly show that the defense lacks merit. (Def. Mot. 3). However, it would be inappropriate for this Court to consider the Defendants' factual proof for their defense when construing a motion to strike.

Defendants have adequately plead both elements of their affirmative defense under the Federal Rules of Evidence. To properly plead this defense, Defendants must allege: (1) existence of after-acquired evidence of employee-wrongdoing and (2) this wrongdoing would have lead to employee's dismissal. They have done both in their Answer. They have alleged that Plaintiff engaged in wrongdoing when he failed to notify the Department that a witness had lied. Furthermore, they have properly alleged that this failure would have resulted in Plaintiff's rightful termination had it been discovered. Questions regarding whether the Department knew of this lie or whether it would have actually resulted in Plaintiff's firing are properly considered in a Motion for Summary Judgment or at trial, when the Court may consider Defendants' factual support.


For the reasons stated herein, Plaintiff's Motion to strike is DENIED.