Cook v. Mountain America Federal Credit Union et al

Filing 54

ORDER: Plaintiff's 44 Motion to Strike is granted, with leave to Mountain America to file an amended answer with respect to paragraphs 18 and 20 of plaintiff's First Amended Complaint. Plaintiff's 44 Motion to Strike is granted as to Mountain America's first, fourth, and sixth affirmative defenses, with leave to amend Mountain America's fourth affirmative defense. For the reasons stated, leave to amend is denied as to Mountain America's first and sixth affirmative defenses. Mountain America's amended answer shall be served and filed on or before October 4, 2018. Signed by Judge H Russel Holland on 9/20/18. (GMP)

W.O.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Tyler Cook,

)
)
Plaintiff,
)
)
vs.
)
)
Mountain America Federal Credit Union,
)
et al.,
)
)
Defendants. )
_______________________________________)

No. 2:18-cv-1548-HRH

ORDER
Motion to Strike1
Plaintiff moves to strike defendant Mountain America Federal Credit Union’s
answer to plaintiff’s first amended complaint. The motion is opposed. Oral argument has
been requested but is not deemed necessary.
Motions to strike are disfavored “because the motions may be used for delay[]
tactics and because of the strong policy favoring resolution of the merits.” Barnes v.
AT&T Pension Benefit Plan-NonBargained Program, 782 F.Supp.2d 1167, 1170 (N.D.
Cal. 2010). A decision on plaintiff’s motion to strike, whether in plaintiff’s favor or
defendants’ favor, will have little to do with the merits of the case, nor will a decision
advance or delay this litigation in any significant way. Coming early in the case, the
instant motion is unlikely to have been brought for delay or other inappropriate reason.

1

Docket No. 44.

Motion to Strike

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The parties will do well to focus upon the interesting issue which this case presents
flowing from the fact that defendant Mountain America, a cooperative financial
institution, and defendant Financial Assistance, a debt collector, have both reported to
credit reporting agencies, such as defendant Experian Information Solutions, Inc., the
same debt, such that the charge-off debt owed by plaintiff appears on credit reports twice.
Relying upon Rule 8, Federal Rules of Civil Procedure, in both the instant motion
and in plaintiff’s reply memorandum the plaintiff seeks the dismissal of Mountain
America’s answer to plaintiff’s first amended complaint.2 However, plaintiff’s motion to
strike is in fact narrowly focused on Mountain America’s denial of paragraphs 18 and 20
of plaintiff’s first amended complaint and Mountain America’s first, fourth, and sixth
affirmative defenses.
Rule 8, Federal Rules of Civil Procedure, requires that a party’s answer “admit or
deny the allegations asserted against it by an opposing party[,]” Fed. R.
Civ. P. 8(b)(1)(B), that “[a] denial must fairly respond to the substance of the
allegation[,]” Fed. R. Civ. P. 8(b)(2), and that when a party “intends in good faith to deny
only part of an allegation” the answering party “must admit the part that is true and deny
the rest[,]” Fed. R. Civ. P. 8(b)(4). Mountain America’s answers to paragraphs 18 and 20
do not comport with the spirit of Rule 8. Paragraph 18 of the first amended complaint
alleges that: “[d]espite the assignment of the deficiency balance to the debt collector,
Mountain America continues to report a balance of $13,651.00 and updates the account as
‘charge off.’”3 Mountain America’s answer denies paragraph 18, “[b]ased on the way

2

Motion to Strike at 8, Docket No. 44, and Reply to Defendant’s Response to
Plaintiff’s Motion to Strike at 3, Docket No. 49.
3

First Amended Complaint at 4, ¶ 18, Docket No. 36.

Motion to Strike

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Paragraph 18 is characterized[.]”4 Paragraph 20 of plaintiff’s first amended complaint
alleges that “Mountain America’s reporting of the deficiency balance is concurrent with
Financial Assistance’s reporting of the same debt.”5 Mountain America’s answer denies
paragraph 20, “[b]ased on the way Paragraph 20 is characterized[.]”6 Mountain America
could have – should have – explained what characterizations in paragraphs 18 and 20 that
it took issue with. It is clear to the court that Mountain America could have – and should
have – admitted at least some factual aspects of paragraphs 18 and 20.
Plaintiff’s motion to strike is granted as to paragraphs 18 and 20 of Mountain
America’s answer to the first amended complaint.
By its first affirmative defense, Mountain America asserts that plaintiff has failed
to state a claim upon which relief can be granted based upon Rule 12(b)(6), Federal Rules
of Civil Procedure. In this affirmative defense, Mountain America makes reference to its
motion to dismiss7 which was decided by the court’s order of August 3, 2018.8 In that
order, the court concluded that plaintiff’s Fair Credit Reporting Act claim against
Mountain America was plausible, and therefore not subject to dismissal. However,
because of other problems with plaintiff’s original complaint, the motion to dismiss the
Fair Credit Reporting Act claim against Mountain America was granted with leave to file

4

Mountain America Federal Credit Union’s Answer to First Amended Complaint
at 3, ¶ 18, Docket No. 41.
5

First Amended Complaint at 5, ¶ 20, Docket No. 36.

6

Mountain America Federal Credit Union’s Answer to First Amended Complaint
at 3, ¶ 20, Docket No. 41.
7

Docket No. 16.

8

Docket No. 35.

Motion to Strike

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an amended complaint.9 In due course, plaintiff’s first amended complaint was served
and filed, adding an additional defendant: Financial Assistance, Inc.10
The court having already rejected Mountain America’s Rule 12(b)(6) contention
that plaintiff’s claim was implausible, reassertion of Mountain America’s first affirmative
defense in its answer to plaintiff’s first amended complaint is superfluous and is stricken.
Mountain America’s fourth affirmative defense “asserts all protections and
defenses set forth in Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.”11 A party
pleading an affirmative defense must give the plaintiff fair notice of the defense being
claimed. Simmons v. Navajo County, 609 F.3d 1011, 1023 (9th Cir. 2010). This is not a
heightened pleading requirement such as arises with claims of fraud. Mountain
America’s assertion of “all protections and defenses” is marginally better than an attempt
to claim “all possible affirmative defenses” without specifying any one. What Mountain
America adds with its reference to the Fair Credit Reporting Act gives plaintiff little
notice of what protection or defense is actually being claimed.
Mountain America’s fourth affirmative defense is stricken.
Finally, Mountain America’s sixth affirmative defense opens with “Unstated
Affirmative Defenses[.]”12 Mountain America’s sixth affirmative defense, like its fourth
affirmative defense, suffers from a fair notice problem. The balance of Mountain
America’s sixth affirmative defense calls attention to the fact that discovery may develop

9

Order re Motion to Dismiss; Motion to Amend at 11 (Aug. 3, 2018), Docket

No. 35.
10

Docket No. 36.

11

Mountain America Federal Credit Union’s Answer to First Amended Complaint
at 9, ¶ 4, Docket No. 41.
12

Id. at 9, ¶ 6.

Motion to Strike

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a basis for some presently unasserted affirmative defense. Certainly that is possible. The
scheduling and planning order entered in this case makes provision for motions to amend
pleadings until September 28, 2018. Thereafter, motions to amend are still possible upon
compliance with Rule 15 and Rule 16(b)(4).
Mountain America’s sixth affirmative defense is stricken for lack of fair notice.
Plaintiff’s motion to strike is granted, with leave to Mountain America to file an
amended answer with respect to paragraphs 18 and 20 of plaintiff’s first amended
complaint. Plaintiff’s motion to strike is granted as to Mountain America’s first, fourth,
and sixth affirmative defenses, with leave to amend Mountain America’s fourth
affirmative defense. For the reasons stated, leave to amend is denied as to Mountain
America’s first and sixth affirmative defenses. Mountain America’s amended answer
shall be served and filed on or before October 4, 2018.
DATED at Anchorage, Alaska, this 20th day of September, 2018.

/s/ H. Russel Holland
United States District Judge

Motion to Strike

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