Bruno v. Equifax Credit Information Services, LLC, et al.

Filing 70

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 6/30/2017 re #41 , #43 Plaintiff's Motions to Strike: IT IS ORDERED that plaintiff's Motions to strike defendants' defenses be, and the same hereby are, GRANTED IN PART as follows: 1) Equifax's first, second, third, fifth, sixth, and seventh defenses are stricken. 2) Geneva's first, third, fourth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth defenses are stricken. Plaintiff's Motions are DENIED in all other respects. Defendants have twenty days from the date this Order is signed to file amended Answers, if they can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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DANIEL BRUNO, individually
and on behalf of others
similarly situated,

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CIV. NO. 2:17-0327 WBS EFB
MEMORANDUM AND ORDER RE: MOTIONS
TO STRIKE

Plaintiff,
v.

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EQUIFAX INFORMATION SERVICES,
LLC and GENEVA FINANCIAL
SERVICES, LLC,
Defendants.

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----oo0oo----

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Plaintiff Daniel Bruno brought this putative class

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action against defendants Equifax Information Services, LLC

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(“Equifax”) and Geneva Financial Services, LLC (“Geneva”),1

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Five other defendants--RMB World Enterprises, BB
Direct, Genesis Marketing Group, American Marketing and Mailing
Services, and Strategic Marketing Services--were named in this
action. (Compl. ¶¶ 3-7 (Docket No. 1).) Plaintiff has dismissed
each of those defendants from this action. (See Docket Nos. 22,
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alleging that defendants sold his and putative class members’

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consumer reports to other parties for impermissible marketing

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purposes in violation of the Fair Credit Reporting Act (“FCRA”).

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(Compl. (Docket No. 1).)

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Motions to strike each of the defenses alleged in defendants’

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Answers.

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as to Geneva (Docket No. 43).)

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I.

Before the court are plaintiff’s

(Pl.’s Mot. as to Equifax (Docket No. 41); Pl.’s Mot.

Factual and Procedural Background

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Plaintiff is a California resident.

(See Compl. Ex. B,

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Car Loan Notice (indicating plaintiff resides in California)

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(Docket No. 1-2).)

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(Compl. ¶ 37.)

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credit information and intermediary between Equifax and various

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marketing agencies.

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Equifax is a credit reporting agency.

Geneva is allegedly a collector of consumer

(See id. ¶¶ 17, 28.)

In February 2016, plaintiff received a notice from a

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Hanlees Nissan Chevrolet (“Hanlees”) stating that he had been

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prequalified for a car loan of $5,500 to $39,000.

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Notice.)

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Plaintiff alleges that the notice was sent to him because Geneva

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obtained a copy of his consumer report from Equifax and forwarded

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the report to a marketing agency that was working on Hanlees’

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behalf.

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(Car Loan

The notice identified Geneva as the lender.

(Id.)

(See Compl. ¶¶ 17, 21, 43.)
After receiving the car loan notice, plaintiff

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contacted Hanlees to apply for the loan the notice stated he had

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been prequalified for.

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contact Geneva regarding the loan.

(Id. ¶ 23.)

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29, 40, 56, and 62.)
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Hanlees advised him to
(Id.)

When plaintiff

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contacted Geneva regarding the loan, Geneva allegedly informed

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him that it “did not finance vehicles for purchase and instructed

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him to contact the . . . car dealership for financing approval.”

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(Id. ¶ 26.)

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Plaintiff thereafter filed this putative class action.

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(Id. at 23.)

Plaintiff alleges that his experience with Hanlees

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and Geneva was the result of a nationwide scheme whereby Equifax

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sells “tens of thousands of consumer reports” to Geneva and

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Geneva sells such reports to and partners with various marketing

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agencies for the purpose of “conduct[ing] promotional inquiries

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[using] bogus firm offers of credit.”

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Such a scheme, plaintiff contends, violates the FCRA.

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1.)

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furnishing and failing to maintain reasonable procedures designed

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to avoid furnishing consumer reports to other parties for

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“impermissible marketing purposes” in violation 15 U.S.C. §§

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1681b and 1681e(a).

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causes of action against Geneva for obtaining consumer reports

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for “impermissible marketing purposes” in violation of 15 U.S.C.

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§§ 1681b(f) and 1681e(e), and obtaining such reports under false

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pretenses in violation of 15 U.S.C. § 1681q.

(See id. ¶¶ 17, 21, 30.)
(Id. at

Plaintiff brings a cause of action against defendants for

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(Id. at 16-18.)

Plaintiff also brings

(Id. at 18-21.)

Defendants have filed separate Answers to plaintiff’s

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Complaint.

(See Equifax’s Answer (Docket No. 32); Geneva’s

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Answer (Docket No. 34).)

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Answer.

Equifax alleges seven defenses2 in its

(Equifax’s Answer at 12-13.)

Geneva alleges sixteen

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The term “defense” in this Order refers to both
affirmative defenses and challenges to plaintiff’s prima facie
case.
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defenses in its Answer.

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now moves to strike each of the defenses alleged in defendants’

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Answers under Federal Rule of Civil Procedure 12(f).

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as to Equifax; Pl.’s Mot. as to Geneva.)

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II.

(Geneva’s Answer at 11-14.)

Plaintiff

(Pl.’s Mot.

Legal Standard

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Rule 12(f) authorizes the court to strike

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“insufficient” affirmative defenses3 and “redundant, immaterial,

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impertinent, or scandalous matter[s]” from pleadings.

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Civ. P. 12(f).

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Fed. R.

Affirmative defenses may be insufficient “as a matter

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of law” or “as a matter of pleading.”

Harris v. Chipotle Mexican

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Grill, Inc., 303 F.R.D. 625, 627 (E.D. Cal. 2014) (citing Dodson

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v. Strategic Rests. Acquisition Co. II, LLC, 289 F.R.D. 595, 603

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(E.D. Cal. 2013) (Karlton, J.)).

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insufficient as a matter of law “if it lacks merit under any set

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of facts the defendant might allege.”

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F.R.D. at 603).

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matter of pleading if it fails to provide “fair notice” of its

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nature and grounds to the plaintiff.

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Inc., 779 F.3d 1016, 1019 (9th Cir. 2015).4

An affirmative defense is

Id. (citing Dodson, 289

An affirmative defense is insufficient as a

Kohler v. Flava Enters.,
“Fair notice” of an

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“An affirmative defense is a defense that does not
negate the elements of the plaintiff’s claim, but instead
precludes liability even if all of the elements of the
plaintiff’s claim are proven.” Hernandez v. Dutch Goose, Inc.,
No. C 13-03537 LB, 2013 WL 5781476, at *3 (N.D. Cal. Oct. 25,
2013). “A defendant bears the burden of proof on its affirmative
defenses.” Id.
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Plaintiff argues that Kohler “did not specifically
hold” that the “fair notice” standard applies to affirmative
defenses, and the court should apply the “plausibility” standard
stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
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affirmative defense only requires that the defendant describe the

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defense in “general terms.”

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Id.

“[R]edundant” matters are those “that are needlessly

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repetitive.”

City of Colton v. Am. Promotional Events, Inc., No.

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EDCV 09-1864 PSG SSX, 2012 WL 32606, at *2 (C.D. Cal. Jan. 5,

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2012).

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essential or important relationship to the claim[s] for relief or

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the defenses being pleaded.”

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those “that do not pertain, and are not necessary, to the issues

“[I]mmaterial” matters are those “which [have] no

“[I]mpertinent” matters are

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in question.”

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“improperly cast[] a derogatory light on someone, usually a

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party.”

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2005) (O’Neill, J.).

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III. Discussion

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A.

Id.

Id.

“[S]candalous” matters are those that

Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal.

Defenses That Are Not Affirmative Defenses

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i.

Equifax

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The court has reviewed Equifax’s Answer and determined

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Ashcroft v. Iqbal, 556 U.S. 662 (2009) to the defenses stated in
defendants’ Answers. (See Pl.’s Reply as to Equifax at 2 (Docket
No. 65).) The court acknowledges that a number of decisions from
the Northern District of California have continued to apply the
“plausibility” standard to affirmative defenses post-Kohler.
See, e.g., Murphy v. Trader Joe’s, No. 16-CV-02222 SI, 2017 WL
235193, at *2 (N.D. Cal. Jan. 19, 2017). This court, however,
has generally understood Kohler to have held that the “fair
notice” standard applies to affirmative defenses. See Jing Jing
Yao v. City of Folsom, No. 2:16-CV-2609 MCE AC, 2017 WL 1383274,
at *2 (E.D. Cal. Apr. 18, 2017) (“[T]his Court has . . . held
that Kohler resolves the issue of which pleading standard applies
to affirmative defenses . . . .”); Rodriguez v. Brown, No. 1:15CV-1754 LJO EPG (PC), 2017 WL 1090161, at *1 (E.D. Cal. Mar. 22,
2017) (same); Television Educ., Inc. v. Contractors Intelligence
Sch., Inc., No. CV 2:16-1433 WBS EFB, 2016 WL 7212791, at *1 n.2
(E.D. Cal. Dec. 12, 2016) (same).
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that Equifax’s first, second, third, fifth, sixth, and seventh

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defenses are not affirmative defenses.

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pled in Equifax’s Answer although they may still be raised later

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in this action.

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defenses.

Such defenses need not be

Accordingly, the court will strike such

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ii.

Geneva

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The court has reviewed Geneva’s Answer and determined

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that Geneva’s first, tenth, eleventh, twelfth, fourteenth,

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fifteenth, and sixteenth defenses are not affirmative defenses.

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Such defenses need not be pled in Geneva’s Answer although they

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may still be raised later in this action.

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will strike such defenses.

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B.

Accordingly, the court

Defenses That Are Affirmative Defenses But Fail to Give

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Fair Notice

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Geneva’s fourth defense states that “[a]t all relevant

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times, [Geneva] acted within the absolute and qualified

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privileges afforded it under the FCRA, the United States

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Constitution, applicable State Constitutions, and the common

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law.”

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what privilege Geneva asserts or explain how that privilege might

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be relevant in this action.

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failed to provide plaintiff fair notice of this defense, and will

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strike the defense.

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(Geneva’s Answer at 12.)

This defense does not specify

The court finds that Geneva has

Geneva’s sixth defense states that “[p]laintiff’s

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claims are barred, in whole, or in part, by the equitable

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theories of estoppel, waiver, and laches.”

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not explain, and it is not apparent to the court, how the legal

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doctrines cited in this defense are relevant in this action.
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(Id.)

Geneva does

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Without providing such information, Geneva cannot be said to have

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provided plaintiff fair notice of this defense.

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court will strike this defense.

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Accordingly, the

Geneva’s eighth defense states that “Plaintiff, though

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under a duty to do so, has failed and neglected to reasonably

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mitigate his alleged damages and, therefore, cannot recover

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against [Geneva].”

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in plaintiff’s Complaint are for “mental distress and emotional

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anguish stemming from the ongoing invasion of [plaintiff’s]

(Id. at 13.)

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privacy.”

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not apparent to the court, how plaintiff could have mitigated

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such damages.

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plaintiff fair notice of its mitigation defense, and will strike

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that defense.

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(Compl. ¶ 100.)

The only actual damages alleged

Geneva does not explain, and it is

The court finds that Geneva has not provided

Geneva’s ninth defense states that “[a]ny credit report

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or other information released by [Geneva] to a third party

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concerning Plaintiff was done pursuant to the express provisions

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of the FCRA.”

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fourth defense, this defense states neither the specific FCRA

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provision Geneva allegedly acted pursuant to nor how that

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provision might be relevant in this action.

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court will strike this defense.

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C.

(Geneva’s Answer at 13.)

Similar to Geneva’s

Accordingly, the

Defenses That Are Affirmative Defenses and Provide Fair

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Notice

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i.

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Equifax’s fourth defense states that the FCRA

Equifax

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violations alleged in plaintiff’s Complaint are “the fault of

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other persons or entities and Plaintiff’s damages, if any, should
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be apportioned according to the principles of comparative fault.”

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(Equifax’s Answer at 13.)

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defense to negligence claims.

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Delgado, No. 1:12-CV-1945 LJO SKO, 2013 WL 3288564, at *5 (E.D.

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Cal. June 28, 2013).

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plaintiff has alleged a negligence cause of action under the FCRA

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in this action.

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relevant issue in this action, and plaintiff is aware of the

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general terms of that defense.

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Comparative fault is an affirmative
See J & J Sports Prods., Inc. v.

At oral argument, the parties agreed that

It is thus apparent that comparative fault is a

Accordingly, the court will not

strike this defense.5

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ii.

Geneva

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Geneva’s second defense states that at all relevant

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times, Geneva “had in place reasonable and appropriate procedures

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in compliance with the Fair Credit Reporting Act (‘FCRA,’ 15

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U.S.C. §§ 1681a-v) in its handling of all credit data, including

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. . . data relating to Plaintiff.”

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Geneva cites Taylor v. First Advantage Background Servs. Corp,

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207 F. Supp. 3d 1095 (N.D. Cal. 2016) in support of its

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contention that this defense is an affirmative defense, which

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plaintiff did not oppose at oral argument.

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the issue of whether defendants employed reasonable procedures to

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help ensure compliance with the FCRA in his Complaint, (see

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Compl. ¶¶ 94, 106), the court finds that he has fair notice of

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this defense.

(Geneva’s Answer at 11.)

As plaintiff raised

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Plaintiff stated at oral argument that this defense
should be stricken because Equifax has not joined the other
allegedly liable parties to this action. Plaintiff does not
cite, and the court is not aware of, an authority that requires
such joinder in order to assert a comparative fault defense.
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The court will strike Geneva’s third defense, as it is
redundant of Geneva’s second defense.

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Geneva’s fifth defense states that “Plaintiff has

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failed to join a party needed for the just adjudication of [this]

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action pursuant to the requirements of Rule 19 of the Federal

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Rules of Civil Procedure (Fed. R. Civ. P. 19), in that if Geneva

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is liable to Plaintiff . . . it is liable to Plaintiff jointly

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with Datamyx LLC and/or Deluxe Corporation.”

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12.)

(Geneva’s Answer at

As this defense both cites a specific authority and

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provides the names of the specific parties at issue, the court

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finds that Geneva has provided plaintiff fair notice of this

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defense.

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Geneva’s seventh defense states that “any purported

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damages to Plaintiff . . . are the result of the actions,

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omissions, and/or errors of individuals and/or entities . . .

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over whom [Geneva] has neither authority [nor] ability to

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control.”

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that this defense is the same defense as Equifax’s comparative

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fault defense.

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same reason it declines to strike Equifax’s comparative fault

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defense.

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(Id. at 12-13.)

Geneva represented at oral argument

The court declines to strike this defense for the

Geneva’s thirteenth defense states that “[s]ome or all

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of Plaintiff[’s] claims are barred by applicable statutes of

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limitations, including but not limited to 15 U.S.C. § 1681[p].”

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(Id. at 14.)

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defense is without merit and conceded that it should be stricken.

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Accordingly, the court will strike this defense.

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Geneva represented at oral argument that this

IT IS THEREFORE ORDERED that plaintiff’s Motions to
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strike defendants’ defenses be, and the same hereby are, GRANTED

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IN PART as follows:

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(1)

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Equifax’s first, second, third, fifth, sixth, and
seventh defenses are stricken.

(2)

Geneva’s first, third, fourth, sixth, eighth, ninth,

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tenth, eleventh, twelfth, thirteenth, fourteenth,

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fifteenth, and sixteenth defenses are stricken.

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Plaintiff’s Motions are DENIED in all other respects.

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Defendants have twenty days from the date this Order is

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signed to file amended Answers, if they can do so consistent with

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this Order.

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Dated:

June 30, 2017

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