United States District Court, E.D. Texas, Sherman Division
NICHOLAS D. MOSSER, Plaintiff,
AETNA LIFE INSURANCE COMPANY, Defendant.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On March 9, 2017, the report of the Magistrate Judge
(the “Report”) (Dkt. #278) was entered containing
proposed findings of fact and recommendations that Plaintiff
Nicholas D. Mosser's (“Plaintiff”) Motion to
Strike Aetna Life Insurance Company's Affirmative
Defenses (the “Motion to Strike”) (Dkt. #193) be
filed objections to the report (the “Objections”)
(Dkt. #280). The Court has made a de novo review of
the objections raised by Plaintiff and is of the opinion that
the findings and conclusions of the Magistrate Judge are
correct and the objections are without merit as to the
ultimate findings of the Magistrate Judge. The Court hereby
adopts the findings and conclusions of the Magistrate Judge
as the findings and conclusions of the Court.
seeks to strike the following affirmative defenses (the
“Affirmative Defenses”) asserted by Aetna: (1)
First and Nineteenth Affirmative Defenses (failure to state a
claim upon which relief can be granted); (2) Third
Affirmative Defense (good faith and lawful business reasons);
(3) Eighth Affirmative Defense (standing); (4) Fifteenth
Affirmative Defense (agency); (5) Seventeenth Affirmative
Defense (actual knowledge and/or negligence); and (6)
Twenty-first Affirmative Defense (reservation of rights).
See Dkt. 193.
first point of error is that the Magistrate Judge incorrectly
applied federal law, rather than state law, in her analysis
of the sufficiency of Aetna's First and Nineteenth
Affirmative Defenses, failure to state a claim. Plaintiff
appears to create a dispute where none exists. To the extent
that Plaintiff suggests the Magistrate Judge failed to apply
the proper pleading standards in her analysis, Plaintiff is
diversity cases, federal courts apply state substantive law
and federal procedural law, Hanna v. Plumer, 380
U.S. 460, 466-67 (1965). Traditionally, Texas courts have
applied a pleading standard that is more liberal than the
federal pleading standard, upholding a petition so long as it
provides “fair notice of the claim involved.”
Tex.R.Civ.P. 45(b). In March 2013, however, the Texas Supreme
Court adopted Rule 91a of the Texas Rules of Civil Procedure,
which provides in pertinent part:
[A] party may move to dismiss a cause of action on the
grounds that it has no basis in law or fact. A cause of
action has no basis in the law if the allegations, taken as
true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought. A cause of
action has no basis in fact if no reasonable person could
believe the facts pleaded.
Tex. R. Civ. P. 91a.1 While not identical to the Rule
12(b)(6) standard, the Texas Courts of Appeals have
interpreted Rule 91a as essentially calling for a Rule
12(b)(6)-type analysis, and have relied on the 12(b)(6) case
law in applying Rule 91a. See Linron Properties, Ltd. v.
Wausau Underwriters Ins. Co., 2015 WL 3755071, at *2-3
(N.D. Tex. 2015) (citing Wooley v. Schaffer, 447
S.W.3d 71, 76 (Tex. App.-Houston [14th Dist.] 2014),
reh'g overruled (Oct. 9, 2014); GoDaddy.com,
LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.-Beaumont
2014), review denied (Nov. 21, 2014)).
on the foregoing, there is no credible argument that the
Magistrate Judge applied the incorrect standard. Furthermore,
the Magistrate Judge agreed with Plaintiff that failure to
state a claim is not an affirmative defense, but declined to
strike those defenses. See Dkt. #278 at 5. Thus, it
appears that Plaintiff disagrees not with the analysis, but
rather with the Magistrate Judge's conclusion. This does
not constitute a basis for error. The Magistrate Judge
properly declined to strike Aetna's First Affirmative
Defense. The Magistrate Judge noted that a failure to state a
claim defense, although commonly pleaded in an answer because
Federal Rule 12(h)(2) allows it, is not an affirmative
defense. Dkt. #278 at 5 (citing Kleppinger v. Tex.
Dep't of Transp., 2012 WL 12893653, at *9 (S.D. Tex.
2012) (collecting cases)). Although not technically an
affirmative defense, the failure to state a claim defense may
be treated as such. See Lebouef v. Island Operating Co.,
Inc., 342 Fed.App'x. 983, 984- 85 (5th Cir. 2009).
the defense raises no risk of unfair surprise because
Plaintiff has sufficient notice of what Aetna's assertion
of failure to state a claim requires of him-“that the
‘plain statement' possess[es] enough heft to
‘sho[w] that the pleader is entitled to
relief.'” Twombly, 550 U.S. 544, 557, 127
S.Ct. 1955 (2007) (citing Fed.R.Civ.P. 8(a)(2)); see also
Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008).
Furthermore, striking the defense from Aetna's answer
would be pointless because Plaintiff is not at risk of
prejudicial harm. See Joe Hand Promotions, Inc. v.
Izalco, Inc., 2017 WL 3130581, at *1 (S.D. Tex. 2017)
(citing Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir. 1953)).
the Court finds no error in the Magistrate Judge's
conclusion that the motion to strike Aetna's failure to
state a claim defense should be denied, and Plaintiff's
Objection is OVERRULED.
Magistrate Judge also properly denied Aetna's Third
Affirmative Defense explaining that “while mislabeled,
[it] informed both Plaintiff and the Court of facts Aetna
intends to offer in response to the elements of
Plaintiff's case, ” and therefore, should not be
stricken. Dkt. #278 at 6. As the Magistrate Judge noted,
Plaintiff has been given fair notice here of the defense
being advanced by Aetna. Id. (citing LSREF2
Baron, L.L.C. v. Tauch, 751 F.3d 394, 398 (5th Cir.
2014) (internal citation omitted) (“A district court
has discretion to determine whether the party against whom
the defense was raised suffered prejudice or unfair surprise
as a result of the delay.”)). The Court, therefore,
finds no error, and this Objection is likewise
Eighth Affirmative Defense alleges Plaintiff lacks standing.
Plaintiff takes issue with the Magistrate Judge's
reliance on Muschong v. Millennium Physician Grp.,
LLC, 2014 WL 3341142, at *3 (M.D. Fla. July 8, 2014), an
unpublished case from the Middle District of Florida, for the
proposition that a mistakenly labeled “lack of
standing” affirmative defense, can be treated as a
specific denial, rather than stricken under Rule 12(f).
See Dkt. #280 at 5. As explained below, the Court
finds no error in the Magistrate Judge's ...