Alston v. Equifax Information Services, LLC
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/11/14. (dass, Deputy Clerk)(c/m 2/11/14-das)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KIMBERLY ANN ALSTON,
Civil Action No. GLR-13-934
EQUIFAX INFORMATION SERVICES,
LLC, et al.,
THIS MATTER is before the Court on Plaintiff’s, Kimberly
Solutions, Inc.’s Affirmative Defenses Pursuant to Rule 12(f)
(“Motion to Strike”) (ECF No. 25), and Defendant’s, Dimensions
(“DHC”), Motion to Dismiss or, in the Alternative, for Summary
Judgment (“Motion to Dismiss”) (ECF No. 31).
should be stricken for failure to plead within the Twombly and
Iqbal standards, and whether Ms. Alston’s claims against DHC
Consumer Debt Collection Act are preempted by the Fair Credit
hearing is necessary. See Local Rule 105.6 (D.Md. 2011).
the reasons below, both Motions will be granted.
In November 2006, Ms. Alston received treatment at Prince
account to the United Collection Bureau, Inc. (“UCB”), DHC’s
contracted collections agency, on February 23, 2007.
At the time DHC forwarded the account, there allegedly was
an outstanding balance of $299.30.
UCB attempted to collect the
debt, but Ms. Alston disputed the amount owed on three separate
On each occasion, UCB investigated Ms. Alston’s
claim and determined it was without merit.
After attempting to
attempts because the statute of limitations would bar any legal
In the Complaint and her Opposition to the pending Motion,
Ms. Alston alleges she satisfied the debt and confirmed that
fact with DHC.
She does not, however, specify in either the
Complaint or her Opposition when the debt was satisfied.
Unless otherwise noted, the following facts are taken from
the Second Amended Complaint and the statement of undisputed
facts in DHC’s Motion to Dismiss. The well-pled allegations in
the Second Amended Complaint are accepted as true and viewed in
the light most favorable to Ms. Alston. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 555-56 (2007)).
On October 25, 2011, and October 27, 2011, Ms. Alston
stated the account was not her debt.
On May 29, 2012, Ms.
Alston claimed she was unaware of the account.
further alleges she did not realize DHC was still claiming the
debt until she viewed her credit report a number of years later.
The Complaint avers Equifax and Experian inaccurately published
the UCB account and, notwithstanding her disputes, verified the
account without proper investigation.
On February 5, 2013, Ms. Alston filed suit against Equifax
alleging, inter alia, violations of the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. §§ 168li(a)(1) & (a)(5)(A) (2012).
On March 27, 2013, Equifax removed the action to this
(ECF No. 1).
After obtaining leave from the Court, Ms.
Alston amended her Complaint, adding Experian as a Defendant.
(ECF Nos. 10, 11).
On August 12, 2013, Ms. Alston again sought
Complaint, which the Court granted on August 15.
(ECF Nos. 20,
The Second Amended Complaint added DHC as a Defendant and
(“MCPA”), Md. Code Ann., Com. Law § 13-301(14)(iii) (West 2014);
and the Maryland Consumer Debt Collection Act (“MCDCA”), Md.
Code Ann., Com. Law § 14-202(3) (West 2014).
(ECF No. 20-2).
After Experian filed its Answer on September 11, 2013, Ms.
Alston filed the pending Motion to Strike.
(ECF Nos. 24, 25).
DHC filed its Motion to Dismiss on October 16, 2013.
In the Opposition to DHC’s pending Motion, Ms. Alston
withdrew her FCRA claim as to DHC.
(ECF No. 37).
On January 2,
2014, pursuant to a stipulation agreement, the Court dismissed
Ms. Alston’s claims against Equifax with prejudice.
Motion to Strike
Standard of Review
Ms. Alston moves to strike Experian’s affirmative defenses
pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.
A “court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.”
defense, see Haley Paint Co. v. E.I. Du Pont De Nemours & Co,
generally viewed with disfavor because striking a portion of a
pleading is a drastic remedy and because it is often sought by
the movant simply as a dilatory tactic.”
Waste Mgmt. Holdings,
Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A
Procedure § 1380, 647 (2d ed. 1990)).
The Court will grant Ms. Alston’s Motion to Strike, but
affirmative defenses because they fail to adhere to the pleading
standards articulated in Bell Atl. Corp. v. Twombly, 550 U.S.
Experian counters that the Twombly and Iqbal standards
do not apply to affirmative defenses.
Experian also argues its
affirmative defenses meet the Rule 8 pleading requirement.
Appeals have addressed this issue.
As a result, there is a
split within, and outside of, the District of Maryland regarding
the applicability of Twombly and Iqbal to affirmative defenses.
Some judges within this District have found that the standards
do apply, while other judges have either reached an inconclusive
See Lockheed Martin Corp. v. U.S., --- F.Supp.2d --
-, No. 8:12-cv-03725-AW, 2013 WL 5405654, at *2 (D.Md. Sept. 26,
2013) (collecting cases).
The majority view, which this Court
adopts, is that affirmative defenses must meet the Twombly and
Iqbal standards because defendants should be held to the same
pleading standard as plaintiffs and boilerplate defenses compel
counsel to conduct unnecessary discovery.
See id.; see also
Bradshaw v. Hilco Receivables, LLC, 725 F.Supp.2d 532, 535-36
Under this standard, affirmative defenses must
F.Supp.2d at 536).
In this case, Ms. Alston alleges Experian violated the FCRA
by failing to conduct a reasonable investigation of her disputes
promptly delete the collections account following Ms. Alston’s
May 2012 dispute.
(2d Am. Compl. ¶¶ 17-18, ECF No. 20-2).
its Answer, Experian propounds five3 affirmative defenses:
against Experian upon which relief can be granted.;
2. If Plaintiff suffered any damages or injury, they were not
proximately caused by any act or omission of Experian, but
instead, if incurred, were proximately caused by the acts
or omissions of others or by Plaintiff.;
(See Experian’s Opp’n to Pl.’s Mot. to
Strike Affirmative Defenses at 7 n.3, ECF No. 36).
negligently, avers, that Plaintiff’s action is barred by
the doctrine of contributory negligence.;
constitutional rights under the United States Constitution
and any applicable state constitution or applicable law.;
5. Plaintiff’s claims are barred, in whole or in part, by the
applicable statute of limitations.
(Experian’s Answer at 5-6, ECF No. 24).
Each of Experian’s
because they fail to provide fair notice of the factual basis
for the assertions presented.
See Bradshaw, 725 F.Supp.2d at 535 (“when
affirmative defenses are stricken, the defendant should normally
be granted leave to amend.” (citing Banks v. Realty Mgmt. Serv.,
Inc., No. 1:10cv14 (JCC/TCB), 2010 WL 420037, at *1 (E.D.Va.
Jan. 29, 2010))).
Motion to Dismiss
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) is to test the legal
sufficiency of a complaint.
Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999).
Pursuant to Federal Rule of
Civil Procedure 8(a)(2), a complaint need only contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41,
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.
See Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776, 783 (4th Cir. 1999). However, “[a]
recitation of the elements of a cause of action will not do.”
Ashcroft, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at
A complaint is also insufficient if it relies upon “naked
assertions devoid of further factual enhancement.”
quotation marks omitted).
DHC argues Ms. Alston is unable to state a claim to relief
under the MCDCA or MCPA because both claims are preempted by the
The Court agrees.
The doctrine of preemption is derived from the Supremacy
Clause, which provides “the Laws of the United States . . .
shall be the supreme Law of the Land.”
U.S. Const. art. VI, cl.
The Supremacy Clause permits Congress to preempt state law
through express terms.
Hillsborough Cnty., Fla. v. Automated
originally enacted the FCRA, the statute preempted only those
state laws in conflict with its provisions.
See Ross v. Fed.
(explaining the original version of the preemption provision in
15 U.S.C. § 1681t preempted state laws to the extent they were
Id. at 813.
This allowed for the preemption of,
DHC also avers that, due to Ms. Alston’s withdrawal of her
FCRA claim against it, this Court may not exercise jurisdiction
over her claims under neither federal question jurisdiction, 28
U.S.C. § 1331, nor diversity jurisdiction, 28 U.S.C. § 1332.
Although Ms. Alston withdrew her FCRA claim as to DHC, that
claim remains live as to Experian, giving this Court original
jurisdiction over the action under § 1331 and allowing the Court
to exercise supplemental jurisdiction over the pendent state law
claims against DHC pursuant to 28 U.S.C. § 1367(a).
information to consumer reporting agencies.
The FCRA also contains a conflicting preemption provision
at 15 U.S.C. § 1681h(e).
Several district courts within the
Fourth Circuit have reconciled the conflict between § 1681t(b)
See Beuster v. Equifax Info. Servs., 435
F.Supp.2d 471, 478-79 (D.Md. 2006) (collecting cases); Jeffery
v. Trans Union, LLC, 273 F.Supp.2d 725, 727–28 (E.D.Va. 2003)
(explaining and applying statutory approach); Alabran v. Capital
One Bank, No. 3:04CV935, 2005 WL 3338663, at *5 (E.D.Va. Dec. 8,
Barnhill v. Bank of Am., N.A., 378 F.Supp.2d 696, 703-04 (D.S.C.
2005) (discussing and applying statutory approach); Johnson v.
MBNA Am. Bank Nat’l Ass’n, No. 1:05CV00150, 2006 WL 618077, at
*7 (M.D.N.C. Mar. 9, 2006) (discussing and applying statutory
statutory provisions, while § 1681h(e) applies to state common
Beuster, 435 F.Supp.2d at 479.
claims arising from a breach of the responsibilities contained
in 15 U.S.C. § 1681s-2, which applies to “persons who furnish
U.S.C. § 1681t(b)(1)(F).
Under § 1681s-2(a)(1)(A), a furnisher
reporting agency (“CRA”) information he knows is not accurate.
“information which affects the debtor’s reputation for credit
worthiness with knowledge that the information is false.” Md.
Code Ann., Com. Law § 14-202(3).
The MCDCA defines a collector
as a “person collecting or attempting to collect an alleged debt
arising out of a consumer transaction.”
Id. § 14-201(b).
statute’s definition of a person includes corporations.
Beuster to the present case, Ms. Alston’s MCDCA and MCPA claims
Ms. Alston alleges DHC’s referral of the debt to
UCB, which was subsequently listed on her credit reports as a
collections account, was a knowing disclosure of false credit
information that harmed her creditworthiness.
Both § 1681s-
2(a)(1)(A) and § 14-202(3) contemplate the prevention of knowing
disclosures of false credit information to CRAs because of the
§ 1681s-2(a)(1)(A) preempts any state law claims related to such
(explaining that claims relying on the reporting of false credit
information to the CRAs under North Carolina’s analogue to the
MCDCA are preempted by § 1681t(b)(1)(F)).
MCDCA because her claim falls squarely within the language of
§ 1681t(b)(1)(F) and is, therefore, preempted.
Ms. Alston has failed to state a claim under the MCPA because
See Md. Code Ann., Com. Law § 13-301(14)(iii).
therefore, dismissed from this action.
Order, GRANT Ms. Alston’s Motion to Strike Defendant Experian
Information Solutions, Inc.’s Affirmative Defenses Pursuant to
Rule 12(f) (ECF No. 25), and GRANT DHC’s Motion to Dismiss or,
in the Alternative, for Summary Judgment (ECF No. 31).
Entered this 11th day of February, 2014
George L. Russell, III
United States District Judge
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