Campbell v. Plaza Services, LLC

Filing 22

ORDER denying 15 : Plaintiff's Motion to Strike is DENIED. Signed on 6/22/18 by District Judge Beth Phillips. (Cordell, Annette)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BELINDA CAMPBELL,
Plaintiff,
v.
PLAZA SERVICES, LLC,
Defendant.

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No. 18-00154-CV-W-BP

ORDER AND OPINION DENYING PLAINTIFF’S MOTION TO STRIKE
Pending is Plaintiff’s Motion to Strike, (Doc. 15), which seeks an order striking the
affirmative defenses asserted in this case. For the reasons discussed below, the Motion to Strike
is DENIED.
I. BACKGROUND
Plaintiff filed a one-count Complaint in state court, alleging that Defendant violated the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692. Defendant removed the case
to this Court, (Doc. 1), and filed an Answer that includes five affirmative defenses. In summary,
those defenses allege that (1) the Complaint fails to state a claim, (2) Plaintiff has not suffered an
injury, (3) Defendant acted in good faith, (4) Plaintiff failed to mitigate damages, and (5)
Defendant’s actions were consistent with law. Plaintiff contends that Defendant’s affirmative
defenses have not been plead with sufficient particularity to as required by Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Defendant argues that
Twombly and Iqbal do not apply to affirmative defenses. As discussed below, the Court agrees
with Defendant.

II. DISCUSSION
“The court may strike from a pleading an insufficient defense . . ..” Fed. R. Civ. P. 12(f).
Plaintiff contends that the Defendant’s affirmative defenses are insufficient because they do not
contain the specificity required by Iqbal and Twombly. The Eighth Circuit has not addressed
whether Iqbal and Twombly apply to affirmative defenses. The undersigned has previously
considered this issue and for the following reasons concluded that Iqbal and Twombly do not apply
to affirmative defenses. See Hiskey v. Musician’s Friend, Inc., No. 16-00279 (W.D. Mo. July 11,
2016) (Doc. 27, p. 2-4).
First, before Iqbal and Twombly were decided, the Eighth Circuit determined that an
affirmative defense predicated on the statute of limitations does not need to be pleaded with any
degree of particularity. Zotos v. Lindbergh School Dist., 121 F.3d 356, 361 (8th Cir. 1997). There
is no reason to think the Eighth Circuit meant to establish one rule for defenses based on the statute
of limitations and a different rule for all other defenses. The Eighth Circuit has also held that
“[t]he rules . . . only require a defendant to state in short and plain terms its defenses to a plaintiff’s
claim.” Wisland v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir. 1997). This was the state
of the law with respect to affirmative defenses when Iqbal and Twombly were decided, and those
cases do not compel the conclusion that the Eighth Circuit’s approach was wrong. As another
district judge in this Circuit has observed, “[t]he Eighth Circuit, if presented with the question,
might well conclude that Zotos has been abrogated by Iqbal and Twombly . . . . But Zotos is
squarely on point, and Iqbal and Twombly are not, which means Zotos remains the law of this
Circuit.” Infogroup, Inc. v. DatabaseLLC, 95 F. Supp. 3d 1170, 1193 (D. Neb. 2015). This Court
is not empowered to decide that Zotos and other, similar cases from the Eighth Circuit are no

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longer valid. Furthermore, since the Court issued its Order in Hiskey, there has been no binding
authority applying Iqbal and Twombly to affirmative defenses.
Second, the textual difference between Rule 8(a)(2) and Rule 8(b)(1)(A) augments the
Court’s conclusion. Rule 8(a)(2) requires the plaintiff to plead “a short and plain statement of the
claim showing that the pleader is entitled to relief.” (emphasis supplied). As Twombly explains,
demonstrating an entitlement to relief “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do . . . Factual allegations must be enough
to raise a right to relief above the speculative level.” 550 U.S. at 555. In contrast, a defendant
need not plead the basis for an affirmative defense or set forth a basis for entitlement to the defense;
Rule 8(b)(1)(A) only requires that the defendant “state in short and plain terms it defenses.” This
difference demonstrates that Iqbal and Twombly do not compel the conclusion that the Eighth
Circuit’s prior decisions are invalid.
Third, application of Iqbal and Twombly to defenses is impractical. Another district judge
in this Circuit has succinctly summarized the matter:
[P]laintiffs and defendants are in much different positions. Typically, a plaintiff has
months—often years—to investigate a claim before pleading that claim in federal
court. By contrast, a defendant typically has 21 days to serve an answer.
Fed.R.Civ.P. 12(a)(1)(A)(i). Whatever one thinks of Iqbal and Twombly, the
“plausibility” requirement that they impose is more fairly imposed on plaintiffs who
have years to investigate than on defendants who have 21 days.
Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051 (D. Minn. 2010). It is theoretically
possible (as some district judges have held) to require a defendant to “wait” and then seek leave to
amend the Answer to assert affirmative defenses as they are gleaned during discovery, but this
would unnecessarily complicate and prolong the litigation. “Plaintiffs would often resist those
motions on the grounds that the proposed affirmative defenses would be futile. Thus, another
round of motion practice would be added to many cases, increasing the burdens on the federal
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courts, and adding expense and delay for the parties.” Id. at 1052. In contrast, there is little harm
to leaving affirmative defenses in place because “[i]n a typical case, it quickly becomes apparent
that most of the affirmative defenses are not viable, and the parties simply ignore them. No judicial
intervention is necessary.” Id. Similarly, many affirmative defenses are not really defenses at all;
their presence does not aid the defendant and their absence does not aid the plaintiff.
Thus, for the reasons stated above, Plaintiff’s Motion to Strike Defendant’s affirmative
defenses based on Iqbal and Twombly must be denied.
III. CONCLUSION
Accordingly, Plaintiff’s Motion to Strike, (Doc. 15), is DENIED.
IT IS SO ORDERED.

/s/ Beth Phillips
BETH PHILLIPS, JUDGE
UNITED STATES DISTRICT COURT

DATE: June 22, 2018

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