Keil v. Equifax Information Services, LLC et al

Filing 32

ORDER GRANTING PLAINTIFF'S MOTIONS TO STRIKE AFFIRMATIVE DEFENSES 17 , 18 . Any amended answer must be filed no later than November 27, 2013. (Illston, Susan) (Filed on 11/12/2013) Modified on 11/12/2013 (ysS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 13-03989 SI

DAVID KEIL,

ORDER GRANTING PLAINTIFF’S
MOTIONS TO STRIKE AFFIRMATIVE
DEFENSES

Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, et al.,

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Defendants.

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Currently before the Court are plaintiff’s motions to strike the defendants’ affirmative defenses.

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Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution

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without oral argument and VACATES the hearing scheduled for November 22, 2013. For the reasons

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set forth below, the Court GRANTS the motions to strike.

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BACKGROUND

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The plaintiff in this action, David Keil, is suing defendants Equifax Information Services, LLC

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(“Equifax”), and Community First Credit Union (“CFCU”) for various statutory violations regarding

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the plaintiff’s credit status. The plaintiff alleges that he filed for Chapter 13 bankruptcy in August,

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2009. Compl. ¶ 19. The plaintiff alleges that, in July, 2011, the bankruptcy court issued him a

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discharge order pursuant to 11 United States Code § 727. Id. at ¶ 26. The plaintiff alleges that, despite

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his multiple attempts to clear his credit report through Equifax and CFCU, his credit report continues
to erroneously

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reflect that he owes thousands of dollars. Id. at ¶¶ 28-47.

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On August 27, 2013, the plaintiff filed suit against Equifax and CFCU in this Court, alleging

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violations of: (1) the California Consumer Credit Reporting Act, Cal. Civ. Code § 1785.25(a); (2) 15

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U.S.C. § 1681s-2(b); (3) 15 U.S.C. § 1681e(b); and (4) 15 U.S.C. § 1681i. On September 30, 2013,

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Equifax answered the plaintiff’s complaint, asserting eleven affirmative defenses. On October 1, 2013,

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CFCU answered the plaintiff’s complaint, asserting seventeen affirmative defenses.

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The plaintiff now move the Court to strike each of the defendants’ affirmative defenses.

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LEGAL STANDARD

United States District Court
For the Northern District of California

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Federal Rule of Civil Procedure 8(c) requires defendants to “affirmatively state any avoidance

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or affirmative defense” they wish to assert. Rule 8(b)(1) further requires defendants to “state in short

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and plain terms [their] defenses to each claim asserted against [them].” Under Rule 8(c), an “affirmative

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defense is a defense that does not negate the elements of the plaintiff's claim, but instead precludes

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liability even if all of the elements of the plaintiff's claim are proven.” Barnes v. AT&T Pension Benefit

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Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1171-72 (N.D. Cal. 2010) (quoting Roberge v.

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Hannah Marine Corp., No. 96-1691, 1997 WL 468330, at *3 (6th Cir. Aug. 13, 1997)). The defendant

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bears the burden of proof for each affirmative defense. Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 489,

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492 (9th Cir. 1988).

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Federal Rule of Civil Procedure 12(f) provides that a court may “strike from a pleading an

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insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A defense may

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be insufficient “as a matter of pleading or as a matter of substance.” Sec. People, Inc. v. Classic

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Woodworking, LLC, No. 04-3133 MMC, 2005 WL 645592, at *2 (N.D. Cal. Mar. 4, 2005). A defense

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may be insufficient if it fails to provide the plaintiff with “fair notice” of the defense asserted against

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him and the grounds upon which that defense is asserted. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827

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(9th Cir. 1979) (citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). However, motions to strike are

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generally disfavored. Rosales v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001). When a claim

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is stricken, “leave to amend should be freely given,” provided no prejudice results against the opposing

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party. Wyshak, 607 F.2d at 826.
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DISCUSSION

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The plaintiff’s main argument for striking the defendants’ affirmative defenses is that they fail

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to comply with the heightened pleading standards set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 554

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(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). For the reasons set forth below, the Court agrees

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with the plaintiff’s argument.
While the Ninth Circuit has not yet ruled on the issue, a majority of district courts in this circuit

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require that affirmative defenses comply with the heightened pleading standard set forth in Twombly

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and Iqbal. See Cabrera v. Alvarez, No. C 12-04890 SI, 2013 WL 3146788, at *3 (N.D. Cal. June 18,

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2013) (collecting cases). Applying a heightened standard to affirmative defenses also “weed[s] out the

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United States District Court
For the Northern District of California

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boilerplate listing of affirmative defenses which is commonplace in most defendants' pleadings where

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many of the defenses alleged are irrelevant to the claims asserted.” Barnes, 718 F. Supp. 2d at 1172.

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This Court agrees with the majority of district courts, and applies the heightened Twombly/Iqbal

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pleading standard to affirmative defenses.

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As a preliminary matter, Equifax has withdrawn its seventh and eleventh affirmative defenses.

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See Dkt. 23 at 5. Therefore, the plaintiff’s motion to strike Equifax’s seventh and eleventh defenses is

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GRANTED without leave to amend.

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Applying the Twombly/Iqbal standard to the defendants’ remaining affirmative defenses, each

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one fails on its face. Each asserted defense is stated as a conclusion, devoid of any supporting facts that

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might indicate plausibility. Several are redundant, or apparently irrelevant to this litigation. None of

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the asserted defenses provide any facts that might lend them credibility, still less, plausibility. Because

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the defenses fail to provide the plaintiff with fair notice, they are fatally deficient. Accordingly, the

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plaintiff’s motion to strike Equifax’s remaining affirmative defenses is GRANTED with leave to amend.

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Further, the plaintiff’s motion to strike CFCU’s affirmative defenses is also GRANTED with leave to

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amend.

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CONCLUSION

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For the foregoing reasons and for good cause shown, the Court hereby GRANTS the plaintiff’s

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motion to strike Equifax’s seventh and eleventh affirmative defenses without leave to amend; GRANTS
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the plaintiff’s motion to strike Equifax’s remaining affirmative defenses with leave to amend; and

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GRANTS the plaintiff’s motion to strike CFCU’s affirmative defenses with leave to amend. Any

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amended answer must be filed no later than November 27, 2013.

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IT IS SO ORDERED.

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Dated: November 12, 2013

SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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