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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

EAGLE COVE CAMP & CONFERENCE CENTER INC.,

a Wisconsin non-stock corporation; ARTHUR G. JAROS, JR.,
individually and as co-trustee of the Arthur G. Jaros, Sr. and
Dawn L. Jaros Charitable Trust, and as trustee of the Arthur
G. Jaros, Sr. declaration of trust, and as trustee of the Dawn
L. Jaros declaration of trust; WESLEY A. JAROS, as co-trustee
of the Arthur G. Jaros, Sr. and Dawn L. Jaros charitable trust;
RANDALL S. JAROS, individually and as co-trustee of the
Arthur G. Jaros, Sr. and Dawn L. Jaros charitable trust;
CRESCENT LAKE BIBLE FELLOWSHIP, a Wisconsin
non-stock corporation; and KIM WILLIAMSON,
OPINION AND ORDER
Plaintiffs,
vs. 10-cv-118-wmc

TOWN OF WOODBORO, Wisconsin, a body corporate

and politic; COUNTY OF ONEIDA, Wisconsin, a body
corporate; and ONEIDA COUNTY BOARD OF ADJUSTMENT,

Defendants.

This action involves the efforts of three brothers to build a bible camp on property

owned by their family in the Town of Woodboro and the County of Oneida. After the

brothers‟ re-zoning efforts and application for conditional use permit both failed, they

filed this action alleging various federal statutory and constitutional claims, as well as a

claim under the Wisconsin Constitution and claim for certiorari review of the state

administrative proceedings. The Town of Woodboro, one of the defendants in this

action, has moved to dismiss plaintiffs‟ action for lack of “ripeness” as defined by

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S.

172 (1985). The Town also argues that the court should dismiss the state law certiorari

review claim, allowing it to proceed in state court, and staying the other claims. The
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court will deny the Town‟s motion to dismiss because (1) a final decision has been made

by the appropriate governmental entity concerning the plaintiffs‟ conditional use permit

application and, therefore, plaintiffs‟ claims are ripe under Williamson; and (2) the state

law certiorari review claim appropriately falls within the court‟s supplemental

jurisdiction. Also ripe is plaintiffs‟ motion to strike defendants‟ affirmative defenses,

which the court will grant in part because they fail to meet the pleading requirements of

Rule 8 of the Federal Rules of Civil Procedure.

ALLEGATIONS OF FACT1

The plaintiffs are: (1) Arthur, Wesley and Randall Jaros, brothers and trustees of a

family charitable trust; (2) Eagle Cove Camp & Conference Center (“ECCC”), a non-

stock corporation created by the Jaros brothers; (3) Crescent Lake Bible Fellowship

(“CLBF”), another non-stock corporation which operates a camp; and (4) Kim

Williamson, an employee of CLBF. For over sixty years, the Jaros family has owned the

property that is the subject of this action (“the Subject Property”), located on Squash

Lake in the Town of Woodboro (“the Town”) and the County of Oneida (“the County”).

Since 2004, the Jaros brothers have been attempting to develop a bible camp on

the Subject Property to minister to children with various disabling medical conditions.

CLBF with the Jaros brothers entered into an agreement to participate in the project.

1
The court accepts as true all well-pleaded facts and allegations in the Complaint,
drawing all reasonable inferences in favor of the plaintiffs. London v. RBS Citizens, N.A.,
600 F.3d 742, 745 (7th Cir. 2010).

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This lawsuit concerns the Jaros brothers‟ attempts to obtain needed rezoning and

conditional use permits for the Subject Property from the defendants, the Town, the

County and the County‟s Board of Adjustment (“BOA”).

The Town and the County have an elaborate system of land use regulations and

oversight boards and committees. In brief, the Town adopted a Land Use Plan in 1997,

which it reaffirmed in adopting a 2009 Comprehensive Plan. The County is required to

incorporate the Town‟s Land Use Plan pursuant to Wis. Stat. § 59.69(1). In 2000, the

County adopted a comprehensive revision of its zoning ordinance pursuant to Wis. Stat.

§ 59.69(5)(d). In 2001, the Town affirmatively approved the County‟s revision and

agreed to be bound by its terms as required by § 59.69(5)(d).

Under the County‟s zoning ordinance, the Subject Property is located partially in

“District 2 Single Family Residential” and partially in “District 4 Residential and

Farming.” Bible and other recreational camps are not authorized in those districts; nor is

a bible camp contemplated anywhere in the Town of Woodboro.

Initially, the Jaros brothers sought rezoning of the Subject Property in order to

operate a bible camp. On May 20, 2005, the County‟s Planning Manager Steven

Osterman informed Arthur Jaros that the Subject Property would need to be rezoned to

either “District 4, Recreation” or “District 10, General Use” in order to operate a year-

round bible camp there. Based on this advice, the Jaros brothers applied for rezoning in

2005. The Town submitted a recommendation of denial to the County Planning and

Zoning Committee on May 15, 2006. The County‟s Planning and Zoning Committee

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found the rezoning was unnecessary and recommended denial of the application, which

the BOA accepted on August 15, 2006, effectively denying the Jaros brothers‟ petition to

rezone.

Based on one of the County‟s Planning and Zoning Committee‟s findings, the

Jaros brothers then applied for a conditional use permit. The application was filed on

December 29, 2006. As part of the application, plaintiffs were required to seek various

permits from the Wisconsin Departments of Natural Resources, Commerce and

Transportation. The process for obtaining these permits took approximately two years

and cost approximately $200,000.

Despite this effort and expense, the County‟s Planning and Zoning Committee

ultimately denied the conditional use application on August, 19, 2009, finding the

proposed use incompatible with single family uses and previously adopted local plans for

the area. Plaintiffs filed an appeal of this denial to the BOA. At a session on January 12,

2010, the BOA decided (1) that the proposed bible camp was not an allowable

conditional use in the zoning districts in which the Subject Property was currently zoned;

(2) not to grant the plaintiffs any relief under the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”); and (3) to affirm the Committee‟s

denial of the conditional use permit and dismiss the appeal. On February 11, 2010, the

BOA later adopted a written resolution confirming its decision.

Plaintiffs filed the present action on April 27, 2010, asserting the following causes

of action:

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violations of RLUIPA (Counts I-V);

42 U.S.C. § 1983 claims for violations of the Fourteenth Amendment‟s

equal protection clause (Count VI) and for violations of the First
Amendment‟s free exercise clause (Count VII);

violation of Article I, Section 18 (freedom to worship) of the Wisconsin

Constitution (Count VIII);

violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq.

(Count IX)

violation of the Rehabilitation Act, 29 U.S.C. § 794 (Count X); and

state law certiorari review pursuant to Wis. Stat. § 59.694(10) (Count XI).

(Compl. (dkt. #1) ¶¶ 186-207.) In addition, plaintiffs lodge both facial and as applied

challenges to defendants‟ regulations and actions. (See Compl. ¶¶ 51-52 (seeking

declarations that “Defendants‟ laws and regulations preventing the Plaintiffs‟ Bible Camp

use” and “Defendants‟ actions preventing the Bible Camp use” are both “illegal and

unconstitutional”).)

Presently before the court is the Town‟s motion to dismiss, which argues that

plaintiffs‟ claims are not ripe for adjudication because plaintiffs failed to pursue state

remedial measures. Also before the court is plaintiffs‟ motion to strike certain affirmative

defenses of both the Town and the County defendants.

OPINION

A. The Town’s Motion to Dismiss

In its opening brief, the Town sought dismissal of all of plaintiffs‟ claims for lack

of ripeness. Perhaps realizing the weakness of this argument, the Town seemingly shifted

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its position in reply, and instead appears to seek dismissal on the grounds that this court

should decline supplemental jurisdiction of plaintiffs‟ claim for state law certiorari review

(Count XI) and stay or dismiss the remaining claims awaiting that review, on the basis

that this would be a prudent or common sense approach. The court will address each

argument in turn.

1. Ripeness

The Town argues that plaintiffs‟ claims are not ripe for adjudication because the

plaintiffs have failed to pursue state law remedies, namely certiorari review of the County

BOA‟s denial of plaintiffs‟ conditional use permit application under Wis. Stat. §

59.694(10). The Town‟s argument, however, conflates and misapplies the requirements

for ripeness.

In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985), the Supreme Court articulated two ripeness requirements for

bringing a takings claim: (1) finality and (2) exhaustion. Under the finality requirement,

“a claim that the application of a government regulation affects a taking of a property

interest is not ripe until the government entity charged with implementing the

regulations had reached a final decision regarding the application of the regulations to the

property at issue.” 473 U.S. at 186. To meet the exhaustion requirement, a plaintiff

must pursue relief in the state remedial process, because if the state process “yield[s] just

compensation, then the property owner has no claim against the Government for a

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taking.” Id. at 194-95 (quotation marks and citation omitted); see also Forseth v. Vill. of

Sussex, 199 F.3d 363, 372 (7th Cir. 2000). The Court further explained in Williamson

that:

While policies underlying the two concepts often overlap, the

finality requirement is concerned with whether the initial
decisionmaker has arrived at a definitive position on the issue
that inflicts an actual, concrete injury; the exhaustion
requirement generally refers to administrative and judicial
procedures by which an injured party may seek review of an
adverse decision and obtain a remedy if the decision is found
to be unlawful or otherwise inappropriate.

473 U.S. at 193.

While the Seventh Circuit has extended the application of the Williamson

requirements to substantive due process claims,2 plaintiffs here have not alleged either a

takings claim or a substantive due process claim. Moreover, in Forseth v. Village of Sussex,

the Seventh Circuit rejected any extension of the Williamson ripeness requirements to

equal protection claims. 199 F.3d at 371. “[T]he Forseths‟ equal protection claim is

independent from their takings claim and accordingly, is not subject to Williamson‟s

ripeness requirements.” Id.; see also Baron v. Frederickson, 419 F. Supp. 2d 1056, 1062

(W.D. Wis. 2006) (distinguishing the plaintiffs‟ equal protection claim from their takings

claim and finding the former ripe for decision). Accordingly, the application of

Williamson to plaintiffs‟ claims is questionable at best.

Even where Williamson has been applied to equal protection and RLUIPA claims

like those here, a plaintiff need only meet the first requirement, finality, and not the

2
See, e.g., Gamble v. Eau Claire County, 5 F.3d 285, 287-88 (7th Cir. 1993).
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second requirement of exhaustion of state remedies. See, e.g., Grace Cmty. Church v. Lenox

Twp., 544 F.3d 609, 617-18 (6th Cir. 2008) (applying ripeness requirement to a RLUIPA

and equal protection claims, but limiting requirement to a final decision of the

government entity making land use decisions, and explicitly rejecting an “exhaustion

requirement”). These distinctions make sense because the exhaustion of state remedies is

implicit in a takings and substantive due process claims; indeed, a court cannot evaluate

whether a plaintiff has been denied due process or just compensation absent

consideration of state remedial measures.

In other words, the availability of state remedies does not mean that an aggrieved

property owner is required to take advantage of them. As the Williamson Court

explained:

While it appears that the State provides procedures by which

an aggrieved property owner may seek a declaratory judgment
regarding the validity of zoning and planning actions taken
by county authorities, respondent would not be required to resort
to these procedures before bringing its § 1983 action, because those
procedures clearly are remedial.

473 U.S. at 193 (emphasis added).3

Here, the Jaros brothers obtained a final decision from the County BOA denying

their application for a conditional use permit on January 12, 2010. The BOA is the

3
The Town appears to concede this point at the beginning of its opening brief: “The
Town‟s objection to this case is, of course, not based on exhaustion of remedies.”
(Town‟s Br. (dkt. #3) at 3.) But, later, the Town shifts its position, asking the court to
“require that the plaintiffs pursue any and all applicable state law remedies before asking
the federal court to become involved.” (Id. at 6.)

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“government entity charged with implementing the regulations,” and its January 2010

denial (adopted in written form on February 11, 2010) was a “final decision regarding

the application of the regulations to the property at issue.” Williamson, 473 U.S. at 186.

This case is, therefore, readily distinguishable from other cases cited by the Town where

the landowner challenging a zoning decision failed to obtain a final decision, by, for

example, failing to appeal a decision to the zoning board of appeals. See, e.g., Spring

Spectrum L.P. v. City of Carmel, Ind., 361 F.2d 998, 1004 (7th Cir. 2004) (cited at Town‟s

Br. (dkt. #13) 10) (holding that failure to follow the city‟s administrative procedures and

to obtain a final decision rendered the claims unripe); Trustees of Marion Kingdom Hall of

Jehovah’s Witnesses v. City of Marion, 638 F. Supp. 2d 962, 974 (S.D. Ill. 2007) (cited at

Town‟s Br. at 4) (finding claim unripe where plaintiff failed to obtain decision from

City‟s zoning board of appeals); Woodfield Equities, L.L.C. v. Incorporated Vill. of Patchogue,

357 F. Supp. 2d 622, 631-32 (E.D.N.Y. 2005) (cited at Town‟s Br. at 10) (holding that

failure to complete applications to the Village rendered plaintiffs‟ preliminary injunction

request unripe).

Moreover, the plaintiffs‟ claims include facial challenges of the defendants‟ land

use regulations, and the final determination requirement does not to apply to facial

challenges. See Yee v. City of Escondido, Cal., 503 U.S. 519, 533-34 (1992); Daniels v. Area

Plan Comm’n of Allen County, 306 F.3d 445, 458 n.13 (7th Cir. 2002).

Lastly, the Town hints, but does not fully develop, an argument that plaintiffs lack

standing. Specifically, the Town contends that “[u]ntil such time as the certiorari claim

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has been adjudicated, it is unknown whether or not the plaintiffs have been injured.”

(Town‟s Br. (dkt. #13) 7.) While plaintiffs may pursue a state remedy, namely certiorari

review pursuant to Wis. Stat. § 59.694(10), they need not do so to pursue the present

action. The plaintiffs have satisfied the injury requirement by pleading an injury in fact

-- the BOA‟s denial of their conditional use application -- that is concrete, particularized

and actual. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180

(2000). Similarly, they have fulfilled the finality requirement under § 1983 and any

Williamson requirement to the extent applicable.

2. Supplemental Jurisdiction of Certiorari Review, Wis. Stat. § 59.694(10)

As previously noted, the Town seems to shift its position in its reply brief, arguing

that this court should refuse to exercise supplemental jurisdiction over plaintiffs‟ state

law certiorari review, Wis. Stat. § 59.694(10) claim, and then should stay the remaining

claims until a Wisconsin circuit court can conduct a review of the BOA‟s denial of the

Jaros brothers‟ conditional use permit application.

Section 59.694(10) provides:

(10) Certiorari. A person aggrieved by any decision of the board

of adjustment, or a taxpayer, or any officer, department,
board or bureau of the municipality, may, within 30 days
after the filing of the decision in the office of the board,
commence an action seeking the remedy available by certiorari. The
court shall not stay the decision appealed from, but may, with
notice to the board, grant a restraining order. The board of
adjustment shall not be required to return the original papers
acted upon by it, but it shall be sufficient to return certified
or sworn copies thereof. If necessary for the proper
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disposition of the matter, the court may take evidence, or

appoint a referee to take evidence and report findings of fact
and conclusions of law as it directs, which shall constitute a
part of the proceedings upon which the determination of the
court shall be made. The court may reverse or affirm, wholly or
partly, or may modify, the decision brought up for review.

Wis. Stat. § 59.694 (emphasis added). Review of the BOA‟s decision to deny plaintiffs‟

conditional use application is “so related” with plaintiffs‟ federal statutory and

constitutional claims that the state law certiorari claim is “part of the same case or

controversy,” and therefore is within this court‟s supplemental jurisdiction. 28 U.S.C. §

1367(a).

In light of the overlap, it is unsurprising that federal courts have exercised

supplemental jurisdiction over state law certiorari claims in very similar cases to the one

at hand. For example, in Mirbeau of Geneva Lake LLC v. City of Lake Geneva, No. 08-cv-

493, 2009 WL 3245257, at *1 n.1 (E.D. Wis. Oct. 2, 2009), the court exercised

supplemental jurisdiction over the certiorari claim brought under Wis. Stat. § 68.13 --

Wisconsin‟s statutory provision for review of municipal administrative procedure

decisions. See also Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 672-73

(10th Cir. 2006) (affirming district court‟s exercise of supplemental jurisdiction over

intervenor homeowner association‟s restrictive covenant claim); Rocky Mountain Christian

Church v. Bd. of County Comm’rs of Boulder County, 612 F. Supp. 2d 1157, 1159, 1162 (D.

Colo. 2009) (exercising supplemental jurisdiction over writ of certiorari of defendant‟s

denial of plaintiff‟s special use application); Moxley v. Town of Walkersville, 601 F. Supp.

2d 648, 666-67 (D. Md. 2009) (exercising supplemental jurisdiction over state law
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judicial review claim because it was so related to the RLUIPA claim); Westchester Day Sch.

v. Vill. of Mamaroneck, 417 F. Supp. 2d 477, 560 (S.D.N.Y. 2006) (“[T]his Court has

independent authority to address WDS‟s claim that the ZBA‟s decision was arbitrary and

capricious in its exercise of supplemental jurisdiction as governed by New York law and

N.Y.C.P.L.R. § 7801 et seq., pursuant to 28 U.S.C. § 1367.”); Congregation Kol Ami v.

Abington Twp., No. Civ.A. 01-1919, 2004 WL 1837037, at *19 (E.D. Pa. Aug. 17, 2004)

(exercising supplemental jurisdiction over appeal of adverse zoning decision by the

township‟s Zoning Hearing Board).

Here, too, the Town appears to concede that the certiorari claim is “so related” to

plaintiffs‟ federal statutory and constitutional claims to allow for the court to exercise

supplemental jurisdiction. Rather, the Town argues that the “prudent,” “logical,” or

“wise” decision requires the court to decline supplemental jurisdiction. Under 28 U.S.C

§ 1367(c), a court may decline supplemental jurisdiction if:

(1) the claim raises a novel or complex issue of state law,

(2) the claim substantially predominates over the claim or

claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it
has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

The only one of these four factors that arguably may apply is the fourth, but the Town

has failed to articulate such a compelling reason. On the contrary, whether declining to

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exercise supplemental jurisdiction may be the “prudent” choice, the Town seems to

concede it is certainly not compelled.

Importantly, this is not a case, like Northfield Sanitary Landfill, Inc. v. City of

Indianapolis, 902 F.2d 521, 522 (7th Cir. 1990), where the court criticized the plaintiffs‟

attempt to transform a land use dispute into a constitutional due process claim. Here,

plaintiffs allege constitutional claims, including facial challenges to defendants‟ land use

regulations, which are not dependent on state law certiorari review. “Just as a plaintiff

cannot „cloak‟ a state law cause of action in a federal constitutional claim, neither can the

defendant cloak conduct that allegedly violates the equal protection clause of the United

States Constitution by labeling it as „land use‟ decision by a municipality devoid of any

federal interest.” Mirbeau, 2009 WL 3245257, at *5 n.7 (internal citation omitted). As

such, there is no compelling reason why the court should abstain from exercising its

authority over a related, state law certiorari claim to allow that claim to proceed in state

court first, while staying the remaining claims until exhaustion through the state court

system.

Refusing to exercise jurisdiction over the state law certiorari claim and staying the

remaining claims until exhaustion of the state court system also will not support judicial

efficiency, at least where plaintiffs purport to raise significant federal claims, including

facial challenges to defendants‟ land use regulations, that will require examination by this

court anyway. “[C]ertiorari review and the § 1983 claim are distinct legal actions, and

immediately commencing the certiorari review would not dramatically resolve the issues

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propelling the equal protection claim because of the restrictive nature of certiorari

review.” Mirbeau. 2009 WL 3245257, at *5. Given that this process has dragged on for

almost six years already -- much of the last year of which this court is responsible for --

one is hard pressed to think of a more compelling reason to have all of plaintiffs‟ claims

resolved once and for all, for better or worse, in this single forum.

The Town‟s concern seems based in some notion that a federal court is ill-

equipped or disinclined to follow the appropriate procedures and standard of review. 4

This court understands that in reviewing a certiorari claim a court must be mindful of the

scope and purpose of such review and the level of deference afforded the BOA. See

Mirbeau, 2009 WL 3245257, at *2 (noting that in conducting a certiorari review, a court

is “only determining whether a municipal body has kept within the boundaries prescribed

by the express terms of the ordinance, statute, or law of Wisconsin” and that a

“presumption of „correctness and validity‟ is afforded to the municipal board‟s decision”)

(quoting State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 13,

269 Wis. 2d 549, 676 N.W.2d 401 (2004), and citing State ex rel. Wasilewski v. Bd. of Sch.

Dirs. of City of Milwaukee, 144 Wis. 2d 243, 264, 424 N.W.2d 159, 176 (1961)).

The plaintiffs are not arguing, nor is the court holding, that certiorari review must

be completed in federal court. Indeed, absent the federal questions in Counts I-VII and

4
Perhaps the Town‟s concerns are rooted in some general notion of comity or federalism.
At least one court has suggested that the finality requirement addresses any federalism
concerns. See Grace Cmty. Church, 544 F.3d at 615.

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IX-X, certiorari review would obviously not be subject to this court‟s supplemental

jurisdiction and this certiorari review would begin in Wisconsin circuit courts. Wis. Stat.

§ 59.594(10). But there is nothing in the statute that limits review to state courts,

especially where certiorari review is so closely related to other federal question claims in

suit over which this court has original jurisdiction. Accordingly, the court rejects the

Town‟s argument that the court should refuse to exercise supplemental jurisdiction over

the state certiorari claim.

B. Plaintiffs’ Motion to Strike Affirmative Defenses

Also before the court is plaintiffs‟ motion to strike certain affirmative defenses

filed separately by the Town and the County defendants pursuant to Rule 12(f) of

Federal Rules of Civil Procedure. The deficiencies that plaintiffs argue warrants the

unusual step of striking affirmative defenses, fall into three categories: (1) insufficient to

meet the pleading requirements of Rule 8;5 (2) legally unsupportable; and (3) negative

defenses as affirmative defenses.

Generally speaking, motions to strike portions of pleadings are disfavored as they

consume scarce judicial resources and may be used for dilatory purposes. See Custom

5
Plaintiffs also contend that defendants must plead their affirmative defenses by
reference to plaintiffs‟ counts pursuant to Fed. R. Civ. Proc. 10(b). (Pls.‟ Mot. to Strike
(dkt. #15) at 3-4.) Defendants have pled each affirmative defense in separate, numbered
paragraphs. Although defendants could certainly have referenced plaintiffs‟ counts, they
need not do so unless the failure to do so renders defendants‟ pleading insufficient under
Rule 8. As such, the court will consider this purported failure with reference to a specific
affirmative defenses.

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Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006); Heller Fin., Inc. v.

Midwhey Powder Co., 883 F.3d 1286, 1294 (7th Cir. 1989). In light of this general

aversion to motions to strike, the court will only review plaintiffs‟ arguments as to the

first category, because those pleadings which are insufficient to meet the requirements of

Rule 8 at least arguably may prejudice plaintiffs.6 See Greenheck Fan Corp. v. Loren Cook

Co., No. 08-cv-335-jps, 2008 WL 4443805, at *2 (W.D. Wis. Sept. 25, 2008) (“Failing

to properly notify is prejudice.”).

In pleading an affirmative defense, a defendant must comply with Rule 8‟s

pleading requirement: “Affirmative defenses are pleadings and, therefore, are subject to

all pleading requirements of the Federal Rules of Civil Procedure.” Heller Fin., 883 F.2d

at 1294. As such, defendants must, at minimum, set forth a “short and plaint statement”

of defenses. Fed. R. Civ. Proc. 8(a). Following Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007) and Ashcroft v. Iqbal, 556 U.S. ---, 129 S.Ct. 1937 (2009), most courts have

extended the heightened pleading standard to affirmative defenses. See, e.g., Barnes v. A T

& T Pension Benefit Plan-Nonbargained Program, No. C 08-04058 MHP, 2010 WL

2507769, at *2 (N.D. Cal. June 22, 2010) (citing other cases); Palmer v. Oakland Farms,

Inc., No. 5:10cv00029, 2010 WL 2605179, at *5 (W.D. Va. June 24, 2010); Greenheck

Fan, 2008 WL 4443805, at *1. Because Rule 8‟s requirement for pleading defenses in an

answer is substantially the same as that required in pleading claims in a complaint and

6
Plaintiffs are not prejudiced by negative defenses as affirmative defenses. And as for
any legally unsupportable defenses, these are better dealt with if and when raised, for
example, in a motion to dismiss, on the pleadings or for summary judgment.

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because the Iqbal/ Twombly pleading standard serves a valid purpose in requiring at least

some valid factual basis for pleading an affirmative defense, the court will apply this

arguably heightened pleading standard in evaluating the sufficiency of defendants‟

respective affirmative defenses, though some of defendants‟ affirmative defenses fail even

under a notice standard.

1. The County’s Answer7

With respect to the County defendants‟ pleading, the court finds that the County

has sufficiently pled ¶ 217 (¶ 216 in the amended answer) to allege an affirmative

defense of immunity from state law claims under Wis. Stat. § 893.80, which meets the

requirements of Rule 8.8 The court will, however, strike ¶¶ 220, 221 and 222 (¶¶ 219,

220 and 221 of the amended answer) as insufficient to meet the requirements of Rule 8:

7
Plaintiffs filed an amended complaint, the same day as plaintiffs filed the motion to
strike. (Dkt. #16.) The County defendants and the Town both filed answers to the
amended complaint. (Dkt. ##28, 30.) The parties‟ briefs on the motion to strike
reference the paragraph numbers in the original answers filed by the defendants. While
the Town‟s affirmative defenses in its original pleading and amended pleading are the
same, the County defendants omitted ¶ 209 (“The Oneida County defendants may be
entitled to immunity with respect to plaintiffs‟ claims, in whole or in part.”) in their
original answer from their amended answer. (Compare dkt. #7 with dkt. #28.) As such,
the subsequent paragraphs of the affirmative defenses in the County defendants‟
amended answer do not correspond with those in the original answer, and nor do they
align with the parties‟ references in their briefs. Accordingly, the court references both
the paragraph number in the original answer (dkt. #7) and the amended answer (dkt.
#28) for the sake of clarity.
8
Plaintiffs also take aim at the defendants‟ use of “may” in some of their defenses,
contending that it constitutes “improper speculation,” which “fail[s] to inform Plaintiffs
of which defenses the Defendants are actually raising.” (Pls.‟ Br. in Supp. of Mot. to
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Paragraph 220 (¶ 221 of the amended answer) alleges: “Plaintiffs may have failed

to mitigate their damages.” The pleading fails to point to the existence of some

identifiable fact that if applicable would make the affirmative defense plausible on

its face as to some or all of plaintiffs‟ claims.

Paragraph 221 (¶ 220 of amended answer) alleges: “One or more of the plaintiffs

may lack standing to pursue this action.” This pleading fails to provide notice as

to which plaintiff or plaintiffs lack standing, and also fails to point to the existence

of some identifiable fact that if applicable would make the affirmative defense

plausible on its face.

Paragraph 222 (¶ 221 of the amended answer) alleges: “Plaintiffs‟ claims may be

barred, in part, by the applicable statute of limitations.” This pleading also fails to

provide plaintiffs notice as to which statute of limitations is applicable, and as to

which claim or claims the statute of limitation applies, and further fails to point to

the existence of some fact that if applicable would make this affirmative defense

plausible on its face.

The court further strikes ¶ 219 (exhaustion of state remedies) as legally

unsupportable given the court‟s holding today as to the Town‟s motion to dismiss.

Strike (dkt. #15) 4.) The court rejects this argument. Plaintiffs are not prejudiced by
the use of “may.” If anything, the use of the word “may” or phrase “upon information
and belief” will, when used appropriately, insure good faith notice pleading where
additional facts may be required through further investigation and formal discovery
before a qualifier may be removed. Absent other defects with the pleading, the use of
“may” does not undermine the notice requirement inherent in Rule 8. The court refuses
to strike an affirmative defense solely on this basis.

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2. The Town’s Answer

As for the Town‟s Answer, the court strikes ¶ 212 -- “The plaintiffs may have

failed to mitigate their damages as the law requires them to do.” -- for the same reason

the court strikes ¶ 220 of the County‟s Answer. The pleading fails to provide notice as to

which claim or claims and also fails to point to the existence of some identifiable fact that

if applicable would make the affirmative defense plausible on its face.

The court also strikes ¶¶ 208 (ripeness) and 209 (abstention) as legally

unsupportable given the court‟s holding today as to the Town‟s motion to dismiss.

3. Caveat

In granting plaintiffs‟ motion to strike certain affirmative defenses, the court in no

way intends to encourage such motions, which are far more efficiently handled as part of

the parties Rule 26(f) conference or, failing that, by timely contention interrogatories.

See Chesemore v. Alliance Holdings, Inc., No. 09-cv-413-wmc (W.D. Wis. Feb. 16, 2011)

(order granting in part and denying in part motion to strike answer). Nevertheless, given

the delay that has occurred here, as well as the arguably heightened obligations with

respect to pleading after Twombly/Iqbal, the court wanted to at least provide the parties

with the court‟s view of pleading deficiencies, all of which have hopefully already been

addressed in discovery. And to the extent not, defendants may have 60 days to amend

their affirmative defenses pursuant to Fed. R. Civ. Proc. 15(a). Accordingly,

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ORDER

IT IS ORDERED that:

1) defendant Town of Woodboro‟s motion to dismiss on grounds of lack of

ripeness and supplemental jurisdiction (dkt. #11) is DENIED;

2) plaintiffs‟ motion to strike affirmative defenses (dkt. #15) is

GRANTED IN PART AND DENIED IN PART as set forth above; and

3) the parties are relieved of the April 1, 2011 dispositive motion deadline
and the court will hold a telephonic status conference on that day at
9:00 a.m. to address rescheduling of that deadline.

Entered this 24th day of March, 2011.

BY THE COURT:

/s/
______________________________________
WILLIAM M. CONLEY
District Judge

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