The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE PORTIONS OF SPECIAL ANSWER
Before the court is Plaintiffs' Motion to Strike Portions of Special Answer, which was filed on March 18, 2011. For the reasons set forth below, the motion is granted in part and denied in part.
This action arises out of a wage dispute. Plaintiffs claim that, between February 2 and October 15, 2009, they were shorted on their hourly wages and overtime by defendants to the tune of $8,482.34.*fn1 They initiated the above-entitled action by complaint on February 2, 2011, pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et. seq. They seek to recover unpaid wages, an equal amount in liquidated damages, and attorney's fees. They also seek an order from the court directing Defendants to pay Social Security taxes on the wages that they did receive as well as on any additional compensation they recover as a result of this action.
On February 21, 2011, Defendants filed their Special Answer to Plaintiffs' complaint. On March 18, 2011, Plaintiffs filed a motion strike several of the affirmative defenses set forth in Defendants' Special Answer. Defendants filed their response to Plaintiffs motion on April 1, 2011, asserting that the motion was untimely, or, in the alternative, premature.
A. Plaintiffs' Objections to Defendants' Special Answer
In paragraphs X and XI of their Special Answer, Defendants asserted that the court lacks subject matter over this dispute and that diversity of citizenship amongst the parties is lacking. Plaintiffs request that these affirmative defenses be stricken as the court's jurisdiction is predicated on the existence of a federal question--an alleged violation of federal law--as opposed to diversity of citizenship and the amount in controversy. In their response to Plaintiffs' motion, Defendants concede that the court has federal question jurisdiction and agree to strike these affirmative defenses.
In paragraph XII of their Special Answer, Defendants asserted that Plaintiffs' claims are barred by the applicable statute of limitations. Plaintiffs dispute that their action is time-barred and ask that paragraph XII be stricken. Specifically, they assert that they initiated the above-entitled action within the two-year window contemplated by 26 U.S.C. § 215. In response, defendants explain that they asserted this defense largely as a protective measure. They further insist there remains a possibility that some of Plaintiffs claims may be barred by the statute of limitations.
Defendants asserted the following in paragraph XIII of their answer:
[T]he North Dakota Department of Labor has a reciprocal agreement with the United States Department of Labor to investigate federal wage and hour claims and has the authority to act on the United States Department of Labor's behalf ...