ncaa striking

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.

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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 Association’s (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

NCAA’s 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 NCAA’s 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 of 12 PageID #:331

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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 Seventh-

Circuit has noted that affirmative defenses are pleadings and subject to the pleading requirements

of the Federal Rules of Civil Procedure,” and striking the defendant’s affirmative defenses that

lacked sufficient facts).2

These recent cases are consistent with the longstanding principle applied in this Circuit,

i.e., that a defendant’s 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 Eng’g v. Hyatt Int’l Corp., 954 F. Supp. 1224, 1230 (N.D. Ill. 1996). Here, each of the

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 Each of the unpublished opinions cited in this Motion are attached as Exhibit A hereto.

2 See also On Command Video Corp. v. Roti, 2010 U.S. Dist. LEXIS 42715, at *4 (N.D. Ill. Apr.

30, 2010) (striking the defendant’s 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

defendant’s “mistake” affirmative defense for failure to plead facts according to the general pleading

standards).

3 For example, the NCAA’s 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


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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 NCAA’s 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 NCAA’s

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.”).

4 For example, the NCAA’s 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 NCAA’s eleventh, twelfth, thirteenth, fourteenth, sixteenth, twenty-first, twenty-

second, twenty-third, twenty-fourth, twenty-sixth, twenty-eighth, thirtieth, and thirty-first affirmative

defenses. However, such speculative musings do not meet the NCAA’s pleading obligations.


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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 NCAA’s 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 NCAA’s 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 NCAA’s 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 claim…and where more than one count has been pleaded…then a reasonable

inference cannot be drawn as to the specific ‘infirmities’ defendants are referencing.”). The

NCAA’s 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’


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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 NCAA’s 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

NCAA’s fifth affirmative defense should be stricken.

D. The Sixth, Seventh, Eighth, Twelfth, Fifteenth and Sixteenth Affirmative

Defenses (Elemental Attacks)

The NCAA’s 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

5 The NCAA’s 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.”

The NCAA’s seventh affirmative defense states: “The claim in Plaintiffs’ Consolidated


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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 NCAA’s 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 plaintiff’s 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 plaintiff’s 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 plaintiff’s prima facie case it is not truly an affirmative defense.”). The NCAA’s 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 NCAA’s 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.”


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E. The Tenth and Eleventh Affirmative Defenses (No Causation)

The NCAA’s tenth and eleventh affirmative defenses attack the NCAA’s 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

plaintiff’s] 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 plaintiff’s] 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

NCAA’s tenth and eleventh affirmative defenses should therefore be stricken.

6 The NCAA’s 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.”

The NCAA’s 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.”

7 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.”).


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F. The Seventeenth, Eighteenth, Nineteenth, Twentieth and Twenty-Ninth

Affirmative Defenses (Propriety of Class Action)

The NCAA’s 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

8 The NCAA’s 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.”

The NCAA’s 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 NCAA’s 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 Plaintiff’s and/or class member’s individual knowledge regarding

the risk of concussions inherent in the sport he/she played; (ii) the causes of each Plaintiff’s and/or class

member’s alleged injury; and (iii) each Plaintiff’s and/or class member’s alleged reliance on the NCAA’s

alleged misrepresentations.”

The NCAA’s 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 NCAA’s 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.”


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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 Gen’l 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)

NCAA’s thirty-second affirmative defense reserves the right to add to its affirmative

defenses. This, too, is improper. Catalina Mktg. Int’l, 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.


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CONCLUSION

For the above reasons, Plaintiffs request that the Court enter an Order granting Plaintiffs’

Motion to Strike Defendant’s 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

[email protected]

Aleksandra M. S. Vold

[email protected]

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)

[email protected]

[email protected]


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Steve W. Berman


1918 Eighth Ave., Suite 3300

Seattle, WA 98101

206.623.7292

206.623.0594 (F)

[email protected]

Robert B. Carey


11 West Jefferson, Suite 1000

Phoenix, AZ 85003

602.840.5900

602.840.3012 (F)

[email protected]

4841-8688-9230, v. 1


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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


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