CitiMortgage, Inc. v. Draper and Kramer Mortgage Corporation

Filing 65

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's Motion to Strike Affirmative Defenses of Defendant 1st Advantage Mortgage, LLC (Doc. #59) is GRANTED to the extent plaintiff seeks to strike defendant 1st Advantage Mortgage, LLC 's "Thirty-Third Affirmative Defense." In all other respects, plaintiff's Motion to Strike Affirmative Defenses of Defendant 1st Advantage Mortgage, LLC (Doc. #59), is DENIED. Signed by Magistrate Judge Frederick R. Buckles on 9/11/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CITIMORTGAGE, INC.,

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)
)
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)
)
)
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)
)
)

Plaintiff,
v.
DRAPER AND KRAMER MORTGAGE
CORPORATION, d/b/a 1st Advantage
Mortgage, et al.,
Defendants.

No.

4:10CV1784 FRB

MEMORANDUM AND ORDER
Presently pending before the Court is plaintiff’s Motion
to Strike Affirmative Defenses of Defendant 1st Advantage Mortgage,
LLC (filed Feb. 9, 2012/Doc. #59).

All matters are pending before

the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
Plaintiff CitiMortgage, Inc. (CMI), brings this breach of
contract action alleging that defendants Draper and Kramer Mortgage
Corporation (Draper and Kramer) and 1st Advantage Mortgage, LLC
(1st Advantage), failed to comply with the terms of Agreements
entered

into

between

CMI

and

defendants,

by

selling

to

CMI

defective residential mortgage loans and by failing to cure the
defects in said loans upon notice thereof.

Plaintiff CMI contends

that defendants failed to repurchase these defective loans, as
provided in the Agreements, resulting in damage to CMI in an amount
exceeding $4 million dollars.

In its Answer to plaintiff’s First

Amended Complaint in which 1st Advantage was first named as a

separate defendant, defendant 1st Advantage raised thirty-four
affirmative defenses to plaintiff’s claims.

(Doc. #58.)

In the

instant motion, plaintiff requests the Court to strike all of 1st
Advantage’s affirmative defenses.1

Defendant 1st Advantage has

responded to the motion, to which plaintiff has replied.
As an initial matter, the undersigned notes that in its
response to plaintiff’s motion to strike, defendant 1st Advantage
concedes that its “Thirty-Third Affirmative Defense,” in which it
reserves its right to assert additional defenses, is not such a
defense and rather is governed by the Federal Rules of Civil
Procedure and the Orders of this Court.

As such, to the extent

defendant 1st Advantage raises this reservation of right as an
“affirmative

defense,”

it

will

be

stricken

as

such.

For

the

following reasons, however, the motion to strike should be denied
in all other respects.
Rule 12(f), Federal Rules of Civil Procedure, permits the
Court to strike from a pleading “an insufficient defense or any
redundant,

immaterial,

impertinent,

or

scandalous

matter.”

Although the Court enjoys “broad discretion” in determining whether
to strike a party's pleadings, such an action is “an extreme
measure.”

Stanbury Law Firm v. Internal Revenue Serv., 221 F.3d

1

In its separate Answer and Affirmative Defenses to Amended
Complaint (Doc. #46), defendant Draper and Kramer raised
affirmative defenses identical to some of those raised by defendant
1st Advantage and challenged by plaintiff here. Notably, plaintiff
does not seek to strike Draper and Kramer’s affirmative defenses,
nor does it otherwise raise a challenge thereto.
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1059, 1063 (8th Cir. 2000).
with

disfavor

and

are

As such, motions to strike are “viewed

infrequently

granted.”

Id.

(internal

quotation marks and citations omitted). See also Southwestern Bell
Tel., L.P. v. Missouri Pub. Serv. Comm’n, 461 F. Supp. 2d 1055,
1064 (E.D. Mo. 2006).
Motions to strike are generally disfavored
because they are often interposed to create a
delay.
Indeed, motions to strike can be
nothing other than distractions. If a defense
is clearly irrelevant, then it will likely
never be raised again by the defendant and can
be safely ignored.
If a defense may be
relevant, then there are other contexts in
which the sufficiency of the defense can be
more thoroughly tested with the benefit of a
fuller record —— such as on a motion for
summary judgment.
Morgan v. Midwest Neurosurgeons, LLC, No. 1:11-CV-37 (CEJ), 2011 WL
2728334, at **1-2 (E.D. Mo. July 12, 2011) (internal quotation
marks and citation omitted).
See also Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.
1977) (reluctant to rule scope of affirmative defense “without the
benefit of a full record”); Speraneo v. Zeus Tech., Inc., No. 4:12CV-578-JAR, 2012 WL 2117872, at *1 (E.D. Mo. June 11, 2012)
(quoting Morgan, 2011 WL 2728334, at *2; citing Bank of Beaver City
v. Southwest Feeders, L.L.C., No. 4:10CV3209, 2011 WL 4632887 (D.
Neb. Oct. 4, 2011)).
When ruling a motion to strike, “the Court must ‘view the
pleadings in the light most favorable to the pleader.’”

Morgan,

LLC, 2011 WL 2728334, at *2 (quoting Cynergy Ergonomics, Inc. v.
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Ergonomic Partners, Inc., No. 4:08-CV-243 (JCH), 2008 WL 2817106,
at *2 (E.D. Mo. July 21, 2008)).

An affirmative defense should not

be stricken “unless, as a matter of law, the defense cannot succeed
under

any

circumstances

or

is

immaterial

in

that

it

has

essential or important relationship to the claim for relief.”
(internal quotations marks and

citations omitted).

no
Id.

See also

Lunsford, 570 F.2d at 229 (motion to strike a defense will be
denied if defense is sufficient as a matter of law or fairly
presents a question of law or fact which the court ought to hear).
In addition, the party seeking to strike must show that it is
prejudiced by the inclusion of the affirmative defense or that the
defense’s inclusion confuses the issues.

Southwestern Bell Tel.,

461 F. Supp. 2d at 1064; Morgan, 2011 WL 2728334, at *2.

“If there

is any doubt whether the matter may raise an issue, the motion [to
strike] should be denied.” Southwestern Bell Tel., 461 F. Supp. 2d
at 1064.
Here, it cannot be said that 1st Advantage’s affirmative
defenses could not succeed under any circumstances.

Indeed, many

of plaintiff’s challenges to the affirmative defenses would require
the Court to engage in a substantive determination of the merits of
the issues raised in this litigation, which would be inappropriate
on a motion to strike.
thus

has

failed

to

In addition, plaintiff fails to assert, and
show,

the

affirmative

defenses

to

be

so

immaterial or so unrelated to plaintiff’s claims for relief that

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the

extreme

measure

of

striking

the

defenses

is

warranted.

Finally, plaintiff has not alleged, much less established, that it
would suffer prejudice by inclusion of the affirmative defenses or
that their inclusion would confuse the issues.

On these bases,

plaintiff’s motion to strike should be denied.
The undersigned notes, however, that in its reply brief
(filed Mar. 5, 2012/Doc. #64), plaintiff raises a new argument to
support its position that the affirmative defenses put forth by 1st
Advantage should be stricken.

Specifically, plaintiff now argues

that the heightened pleading requirements as established in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and clarified in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), apply not only to initial
complaints, but also to affirmative defenses raised in response to
such complaints.

Plaintiff argues that under this heightened

pleading standard, defendant 1st Advantage’s affirmative defenses
must be stricken in their entirety inasmuch as they fail to
adequately plead under Twombly/Iqbal that there is some plausible,
factual

basis

for

the

assertions

rather

than

simply

suggest

possibilities that may apply to the case. (Pltf.’s Reply, Doc. #64
at 2-3.)

This argument was not raised in plaintiff’s initial

motion to strike or in its memorandum in support.
Neither the Eighth Circuit Court of Appeals nor the
Supreme

Court

of

the

United

States

has

rendered

a

decision

determining whether the reasoning of Twombly/Iqbal applies to

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affirmative defenses filed pursuant Rule 8(c), Federal Rules of
Civil Procedure.

Several lower courts have addressed the question

and have reached differing conclusions.

Compare, e.g., Amerisure

Ins. Co. v. Thomas, No. 4:11CV642 JCH, 2011 WL 3021205 (E.D. Mo.
July 21, 2011) (Iqbal and Twombly standards apply to affirmative
defenses); Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 WL
2990159, at *7 (E.D. Va. July 29, 2010) (complaints and affirmative
defenses subject to same Twombly/Iqbal pleading standards), with
Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049 (D. Minn.
2010) (Iqbal and Twombly do not apply to the pleading of defenses
under Fed. R. Civ. P. 8(b) and (c)); Bank of Beaver City v.
Southwest Feeders, L.L.C., No. 4:10CV3209, 2011 WL 4632887 (D. Neb.
Oct. 4, 2011) (against backdrop of Fed. R. Civ. P. 8 and 12(f), as
well as Eighth Circuit’s opinions on such rules, determines that
heightened

pleading

standard

does

not

apply

to

affirmative

defenses); Ash Grove Cement Co. v. MMR Constructors, Inc., No.
4:10-CV-04069,

2011

WL

3811445

(W.D.

Ark.

Aug.

29,

2011)

(Twombly/Iqbal analysis inapplicable to affirmative defenses raised
under Fed. R. Civ. P. 8(c) and would be unreasonable in practice).
Indeed, differing opinions appear to have been rendered by courts
sitting within this district alone.

Compare Amerisure Ins. Co.,

No. 4:11CV642 JCH, 2011 WL 3021205 (E.D. Mo. July 21, 2011), with
Speraneo, No. 4:12-CV-578-JAR, 2012 WL 2117872, at *1 (E.D. Mo.
June

11,

2012)

(citing

approvingly

-6-

Bank

of

Beaver

City,

No.

4:10CV3209, 2011 WL 4632887 (D. Neb. Oct. 4, 2011)).
Upon consideration of the divergent views on the matter,
the undersigned finds the thorough reasoning set out in Wells
Fargo, Ash Grove and Bank of Beaver City to be more persuasive and
consistent with the intent of all aspects of Rule 8, Federal Rules
of Civil Procedure.

As such, to the extent plaintiff requests in

its reply brief that defendant 1st Advantage’s affirmative defenses
be

stricken

for

failure

to

meet

the

heightened

pleading

requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the request
should be denied.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff’s Motion to Strike
Affirmative Defenses of Defendant 1st Advantage Mortgage, LLC (Doc.
#59) is GRANTED to the extent plaintiff seeks to strike defendant
1st Advantage Mortgage, LLC’s “Thirty-Third Affirmative Defense.”
In all other respects, plaintiff’s Motion to Strike Affirmative
Defenses of Defendant 1st Advantage Mortgage, LLC (Doc. #59), is
DENIED.

UNITED STATES MAGISTRATE JUDGE

Dated this

11th

day of September, 2012.

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