Kellie M O'Hanlon v. J.P. Morgan Chase Bank, N.A.

Filing 42

ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES 34 by Judge Dean D. Pregerson the Court GRANTS in part and DENIES in part Plaintiff's Motion to Strike Affirmative Defenses. Defendant has fourteen days to amend. (jp).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KELLIE M. O’HANLON,

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Plaintiff,

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v.
J.P. MORGAN CHASE BANK,
N.A.,

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Defendant.
___________________________

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Case No. CV 15-06640 DDP (PJWx)
ORDER DENYING IN PART AND
GRANTING IN PART PLAINTIFF’S
MOTION TO STRIKE AFFIRMATIVE
DEFENSES
[Dkt. No. 34]

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Presently before the Court is pro se Plaintiff Kellie M.
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O’Hanlon’s Motion to Strike Affirmative Defenses 1-3 and 5-10.
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(Dkt. No. 34.)

Defendant opposed the Motion.

(Dkt. No. 39.)

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After considering the parties’ submissions, the Court adopts the
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following Order.
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I.

BACKGROUND

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This dispute arises out of Plaintiff’s former employment with
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Defendant J.P. Morgan Chase Bank, N.A., and Plaintiff’s employee
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credit card.

(See Notice of Removal, Dkt. No. 1, Ex. A.)

This

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Court previously held that Plaintiff was not required to arbitrate
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this dispute.

(See Order Denying Defendant’s Motion to Compel

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Arbitration, Dkt. No. 18.)

Thereafter, pursuant to the stipulation

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of the parties, the Court granted Plaintiff leave to file an

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amended complaint.

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Amended Complaint (“FAC”) on November 19, 2015.

(Dkt. No. 26.)

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Defendant filed its Answer on December 3, 2015.

(Dkt. No. 27.)

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Then, on December 24, 2015, Defendant filed an Amended Answer.

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(Dkt. No. 31.)

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on January 11, 2016.

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(Dkt. No. 25.)

Plaintiff filed her First

Plaintiff then filed the instant Motion to Strike
(Dkt. No. 34.)

Plaintiff’s main contention is that Defendant wrongfully
terminated her for disputing the balance on her employee credit

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card.

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action based on her raising a Fair Credit Billing Act complaint and

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then being terminated for “acting improperly with respect to filing

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a false credit bureau credit card dispute.”

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claims that Defendant terminated her in retaliation for her

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complaint and that the termination prevented her from accepting

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another internal position with Defendant.

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(FAC ¶¶ 1-3.)

She alleges a wrongful termination cause of

(Id. ¶¶ 13-17.)

She

(Id. ¶¶ 18-23.)

Further, Plaintiff’s FAC alleges violations of the Fair Credit

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Billing Act, 15 U.S.C. § 1601 et seq., the Fair Debt Collection

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Practices Act, 15 U.S.C. § 1692g et seq., and the Fair Credit

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Reporting Act, 15 U.S.C. § 1681, based on Defendant’s failure to

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allow Plaintiff to dispute her alleged credit card billing error.

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(FAC ¶¶ 24-26.)

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California Labor Code section 29301 based on Defendant’s alleged

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failure to provide Plaintiff with a copy of an investigation report

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that occurred prior to Plaintiff’s termination.

Plaintiff claims Defendant also violated

(Id. ¶ 28.)

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The parties stipulated to dismiss with prejudice
Plaintiff’s claims under California Labor Code sections 201 and
208. (See Order, Dkt. No. 38.)
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Plaintiff also alleges a cause of action for violation of the

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Credit Card Accountability, Responsibility, and Disclosure Act of

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2009, caused by Defendant raising her credit card interest rate

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from 10.24% to 29.99% in one billing cycle without sufficient

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notice and warning — and applying that higher rate to backdated

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purchases.

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action for negligent infliction of emotional distress caused by the

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termination of her employment.

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(Id. ¶¶ 29-32.)

Lastly, Plaintiff has a cause of

(Id. ¶¶ 33-37.)

Defendant has filed two Answers to the Complaint.

(Dkt. Nos.

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27, 31.)

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party may amend its pleading once as a matter of course within

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twenty-one days of service.

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filed twenty-one days after filing the first Answer.

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Defendant, it filed the Amended Answer following a meet and confer

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with Plaintiff about her proposed Motion to Strike, and the

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amendment “reduced the number of its affirmative defenses to eleven

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and re-pled the remaining defenses with more specificity.”

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at 4.)

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Under Federal Rule of Civil Procedure 15(a)(1)(A), a

Here, Defendant’s Amended Answer was
According to

(Opp’n

Defendant’s Amended Answer raises eleven affirmative defenses:

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(1) statutes of limitations; (2) laches; (3) estoppel; (4) waiver;

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(5) unclean hands; (6) independent or superseding causes; (7)

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failure to mitigate; (8) Plaintiff caused damage; (9) pre-existing

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condition; (10) offset; and (11) any additional affirmative

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defenses raised during discovery.

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(Am. Answer at 15-20.)

Plaintiff has now filed a Motion to Strike Defendant’s first

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through third and fifth through tenth affirmative defenses.

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///

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II.

LEGAL STANDARD
Rule 12(f) of the Federal Rules of Civil Procedure states that

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the “court may strike from a pleading . . . any redundant,

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immaterial, impertinent, or scandalous matter.”

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12(f).

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claims for relief or the defenses being pled.

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v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).

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matter consists of statements that do not pertain, and are not

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necessary, to the issues in question.

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Fed. R. Civ. P.

Immaterial matter is that which has no bearing on the
Whittlestone, Inc.
Impertinent

Id.

“To strike an affirmative defense, the moving party must

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convince the court that there are no questions of fact, that any

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questions of law are clear and not in dispute, and that under no

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set of circumstances could the defense succeed.”

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902 F. Supp. 1149, 1165 (C.D. Cal. 1995) (internal quotation

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omitted).

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“courts are reluctant to determine disputed or substantial

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questions of law on a motion to strike.”

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Miller v. Fuhu, Inc., No. 2:14-cv-06119-CAS(ASx), 2014 WL 4748299,

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at *1, (C.D. Cal. Sept. 22, 2014).

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S.E.C. v. Sands,

Generally, motions to strike are “disfavored” and

Id. at 1165-66; see also

Under Rule 12(f), the court has the discretion to strike a

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pleading or portions thereof.

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2005 WL 5894689, at *4 (C.D. Cal. 2005).

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Rule 12(f) should be denied unless it can be shown that no evidence

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in support of the allegation would be admissible, or those issues

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could have no possible bearing on the issues in the litigation.”

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Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262 F.

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Supp. 2d 1088, 1099 (E.D. Cal. 2001).

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strike, the court views the pleadings in the light most favorable

MGA Entm’t, Inc. v. Mattel, Inc.,

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“A motion to strike under

In considering a motion to

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to the non-moving party.

See In re 2TheMart.com Secs. Litig., 114

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F. Supp. 2d 955, 965 (C.D. Cal. 2000)).

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III. ANALYSIS

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A.

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Federal Rule of Civil Procedure 8(c)(1) provides a list of

Standard for Pleading Affirmative Defenses

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some potential affirmative defenses and states that “[i]n

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responding to a pleading, a party must affirmatively state any

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avoidance or affirmative defense.”

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There is some uncertainty as to whether the pleading standard

Fed. R. Civ. Pro. 8(c)(1).

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announced in Twombly and Iqbal apply to pleading defenses.

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Gibson Brands, Inc. v. John Hornby Skewes & Co. Ltd., No. CV 14-

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00609 DDP (SSx), 2014 WL 5419512, at *2, (C.D. Cal. Oct. 23, 2014)

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(“As a preliminary matter, it is not yet clear in the Ninth Circuit

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whether the pleading requirements of Ashcroft v. Iqbal and Bell

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Atlantic Corp. v. Twombly apply to affirmative defenses as well as

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claims and counterclaims.” (internal citations omitted)); see also

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Perez v. Gordon & Wong Law Grp., P.C., No. 11-CV-03323-LHK, 2012 WL

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1029425, at *6-8 (N.D. Cal. Mar. 26, 2012)(discussing the different

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pleading standards and holding that the same policies for changing

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the pleading standard for complaints in Twombly and Iqbal apply to

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pleading affirmative defenses, thus holding the affirmative

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defenses to that standard).

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See

This Court in Gibson did not specify whether Twombly and Iqbal

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standards do apply, but noted that “[t]he Court simply seeks to

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avoid the use of ‘boilerplate’ defenses: a ‘series of conclusory

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statements asserting the existence of an affirmative defense

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without stating a reason why that affirmative defense might

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exist.’”

Gibson Brands, No. CV 14-00609 DDP (SSx), 2014 WL
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5419512, at *2 (quoting Barnes v. AT&T Pension Ben. Plan —

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Nonbargained Program, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010)).

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The Court adheres to the same approach here, and notes that the

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result is the same for these affirmative defenses under either

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notice pleading standards or fact pleading standards.

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B.

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Here, Plaintiff seeks to dismiss nine of Defendant’s eleven

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affirmative defenses for lack of sufficient factual basis and/or

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for failing to state a colorable affirmative defense.

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Defendant’s Affirmative Defenses

1.

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Statute of Limitations

This is a specifically enumerated affirmative defense under

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FRCP 8(c)(1).

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statutory code section providing the statute of limitations in each

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of the causes of action against which Defendant raises this

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defense; this failure prevents Plaintiff from understanding the

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basis of Defendant’s theory of untimeliness.

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Plaintiff alleges her own sources and computations of the statute

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of limitations in her Motion.

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does sufficiently provide its theory in the Amended Answer and that

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Plaintiff simply disagrees on the merits of the theory.

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8-10.)

Plaintiff claims that Defendant does not plead the

(Id.)

(Mot. Strike at 5-9.)

Defendant responds that it

(Opp’n at

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The Court finds that Plaintiff’s main issue is with how

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Defendant calculated the different statutes of limitations, which

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is a merits issue.

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two-year, or one-year statues of limitations for different causes

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of action and that they all expired prior to Plaintiff filing the

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case.

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fully set forth the statutes of limitations’ legal basis for each

Defendant alleged that there were four-year,

(See Am. Answer at 15-16.)

However, Defendant did fail to

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of the causes of action the defense is alleged against.

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is correct that this is insufficient to prepare Plaintiff to

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respond to such an argument.

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of actions’ statutes of limitations and the facts that give rise to

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Defendant’s theory that such statutes of limitations were not met

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in this case, such as when the limitation period began running,

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according to Defendant.

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Strike this affirmative defense, with leave to amend.

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2.

Plaintiff

Defendant should delineate the causes

Therefore, the Court grants the Motion to

Laches

This is a specifically enumerated affirmative defense under

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FRCP 8(c)(1).

Plaintiff claims that insufficient facts are pled to

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show that Plaintiff was neglectful or not diligent, or that

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Defendant was prejudiced or disadvantaged in some way by

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Plaintiff’s actions.

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there had only been a year since she knew the nature of her case

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before she brought the suit, which shows diligence.

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Defendant argues that its theory of delay is clear in the pleading

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as to all causes of action: Defendant has been prejudiced by

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Plaintiff’s six-year delay and failure to bring Defendant’s

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attention to the interest rate issue until six years later.

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at 10-11.)

(Mot. Strike at 9-11.)

Plaintiff claims that

(Id.)

(Opp’n

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The Court holds that laches is properly pled by Defendant.

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Defendant’s pleading the timeline in the statute of limitations

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defense sufficiently sets forth the timeline that Defendant takes

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issue to in this affirmative defense.

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prejudice: “As a result of Plaintiff’s unreasonable delay,

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Defendant suffered prejudice or injuries due to the passage of time

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and diminution of memories, turnover of employees who might be
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Defendant also pleads

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potential witnesses, and to the extent that any relevant records

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were lost or destroyed.”

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this affirmative defense are delay and prejudice, and Defendant has

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pled those elements at a sufficient level to provide Plaintiff with

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enough information to formulate her case and respond to the

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affirmative defense.

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to this cause of action.

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3.

(Am. Answer at 16.)

The key elements of

Therefore, the Motion to Strike is denied as

Estoppel

This is a specifically enumerated affirmative defense under

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FRCP 8(c)(1).

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to what kind of estoppel defense Defendant is raising, and that no

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matter what, there are insufficient facts pled to provide Plaintiff

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with notice of what she is alleged to have done or failed to do to

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give rise to such a defense.

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responds that it was claiming equitable estoppel and did provide

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sufficient facts.

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that Plaintiff’s third and fourth causes of action are barred by

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estoppel caused by Plaintiff “conceal[ing] material facts in that

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she failed to bring her complaints with respect to her credit card

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to Defendant’s attention despite her awareness of the allegedly

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true facts.”

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Plaintiff argues that the pleading is not clear as

(Mot. Strike at 11-14.)

(Opp’n at 11-12.)

Defendant

The Amended Answer states

(Am. Answer at 17.)

The Court holds that this is an appropriate affirmative

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defense theory and can be pled by Defendant, but that Defendant

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must provide more information and facts to support it.

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that this is an equitable estoppel defense needs to be specifically

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noted.

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of this defense.

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as to this affirmative defense, with leave to amend.

The fact

More and clearer facts must be pled to put forth the theory
Therefore, the Court grants the Motion to Strike

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Unclean Hands

Unclean hands is a common law affirmative defense.

Gibson

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Brands, No. CV 14-00609 DDP (SSx), 2014 WL 5419512, at *4.

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Defendant has alleged that it kept polices regarding “employee

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dishonesty and misconduct as well as relating to credit issued by

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Defendant.”

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engaged in misconduct by not abiding by such policies and

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“misrepresenting facts relating to her credit card.”

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Defendant argues that Plaintiff may have caused her damages by her

(Am. Answer at 17.)

Here,

Defendant claims that Plaintiff

(Id.)

Thus,

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own bad acts, those acts being disputed by Plaintiff in her

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Opposition.

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the same as claiming fraud; it means that as an equitable matter,

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Plaintiff may — if Defendant is correct — have had a part to play

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in creating the bad situation and employment termination that she

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complains of in her case-in-chief.

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Motion to Strike as to this affirmative defense.

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5.

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(See Opp’n at 14-15.)

However, unclean hands is not

Therefore, the Court denies the

Independent/Superseding Cause

As pled, Defendant has simply stated that “all or portions of

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Plaintiff’s claims are barred, in whole or in part, by the doctrine

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of independent or superseding causes” and that this bars or reduces

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any injures Defendant could be responsible for.

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18.)

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it does not provide notice nor factual bases for what or who is the

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independent or superseding cause so that Plaintiff could amend the

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pleadings and add that party or address the alleged other cause.

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See G&G Closed Circuit Events, LLC v. Nguyen, No. 10-CV-00168-LHK,

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2010 WL 3749284, at *2 (N.D. Cal. 2010).

(Am. Answer at

This could be an affirmative defense, but as currently pled,

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Therefore, Plaintiff’s

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Motion to Strike is granted as to this affirmative defense, with

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leave to amend.

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6.

Failure to Mitigate

Failure to mitigate damages is a common affirmative defense.

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See, e.g., Gibson Brands, No. CV 14-00609 DDP (SSx), 2014 WL

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5419512, *2.

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Plaintiff failed to mitigate by, among other acts, “failing to

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secure alternative employment; failing to take reasonable steps to

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avoid pain, anguish, emotional distress, damage to her reputation,

Here, Defendant’s Amended Answer pleads that

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or any situation with her mortgage resulting in Plaintiff allegedly

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needing to borrow funds or the need to redeem or cash out any

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retirement accounts, and any payments made for benefits or medical

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care.”

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of mitigation are sufficient to put Plaintiff on notice of the

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grounds for Defendant’s affirmative defense.

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to Strike is denied as to this affirmative defense.

(Am. Answer at 18.)

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7.

These factual allegations and theories

Therefore, the Motion

Plaintiff Caused Damage

This particular affirmative defense has been pled before, see,

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e.g., Hernandez v. Dutch Goose, Inc., No. C 13-03537 LB, 2013 WL

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5781476, at *7 (N.D. Cal. 2013), and it is similar to a theory of

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contributory negligence, which is an enumerated affirmative defense

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in Rule 8.

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case were caused by her own actions, such as “her filing a false

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credit bureau credit card dispute, her misleading Defendant as to

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the nature of that dispute and/or the history of charges, payments,

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and/or delinquencies, and Plaintiff’s failure to exercise ordinary

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care on her own behalf.”

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for Plaintiff to know the facts and theory that Defendant relies on

Defendant pleads here that Plaintiff’s injuries in this

(Am. Answer at 19.)

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This is sufficient

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to support its affirmative defense; thus, the Motion to Strike is

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denied as to this defense.

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Pre-Existing Condition

Defendant makes a claim that to the extent Plaintiff seeks

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damages for physical, mental, or emotional distress, that

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Plaintiff’s damages should be lessened to reflect any physical,

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mental, or emotional distress that is a result of a pre-existing

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condition rather than any conduct by Defendant.

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19.)

(Am. Answer at

As Defendant puts it, such damages would be “the result of

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pre-existing psychological disorders or alternative concurrent

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causes and not the result of any act or omission of Defendant.”

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(Id.)

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defense theory as to Plaintiff’s claim for damages.

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stated at a higher level of specificity, particularly as it is a

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damages defense.

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as to this affirmative defense.

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This is sufficient to give Plaintiff notice of Defendant’s

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It need not be

Therefore, the Court denies the Motion to Strike

Offset

Defendant claims that any damages Plaintiff may receive as a

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result of this suit would be offset by sums owed to Defendant.

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(Id. at 19-20.)

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Plaintiff was paid money by Defendant to which she was not legally

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entitled, and/or was reimbursed for expenses not actually incurred

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or over-reimbursed for expenses or other monies, Defendant is

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entitled to an offset against any monies found owing to Plaintiff.”

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The Court agrees with Plaintiff that Defendant has failed to

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properly allege an offset claim.

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outstanding monetary claims by Defendant against Plaintiff would be

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known to Defendant and therefore Defendant should plead more facts

Defendant explains, “[t]o the extent that

The information regarding

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to put Plaintiff on notice of what is Defendant’s theory of

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reducing damages here.

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affirmative defense is granted, with leave to amend.

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IV.

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Therefore, the Motion to Strike this

CONCLUSION
For all the reasons stated above, the Court GRANTS in part and

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DENIES in part Plaintiff’s Motion to Strike Affirmative Defenses.

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Defendant has fourteen days to amend.

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IT IS SO ORDERED.

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Dated:February 25, 2016
DEAN D. PREGERSON
United States District Judge

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