Thornburg v. Open Dealer Exchange, LLC

Filing 43

ORDER AND OPINION (1) DENYING DEFENDANT'S MOTION TO DISMISS, AND (2) DENYING PLAINTIFF'S MOTION TO STRIKE. Signed on 1/9/18 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
JOHN THORNBURG,
Plaintiff,
vs.
OPEN DEALER EXCHANGE, LLC,
d/b/a 700Credit,
Defendant.

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Case No. 17-06056-CV-SJ-ODS

ORDER AND OPINION (1) DENYING DEFENDANT’S MOTION TO DISMISS, AND (2)
DENYING PLAINTIFF’S MOTION TO STRIKE
Two motions are pending: (1) Defendant’s motion to dismiss (Doc. #24), and (2)
Plaintiff’s motion to strike (Doc. #27). For the reasons below, both are denied.

I. BACKGROUND
On May 5, 2017, Defendant removed this matter from the Circuit Court for
Clinton County, Missouri. Doc. #1. On October 6, 2017, Plaintiff filed an amended
complaint. Doc. #20. Plaintiff’s amended complaint alleges Defendant violated the Fair
Credit Reporting Act (“FCRA”) by supplying inaccurate information about Plaintiff in a
credit report provided by Defendant to an automobile dealership. Plaintiff intends to
seek certification of two separate punitive classes. Plaintiff requests statutory and
punitive damages, as well as costs and attorney’s fees. On October 20, 2017,
Defendant answered Plaintiff’s amended complaint. Doc. #23.

II. DEFENDANT’S MOTION TO DISMISS
Defendant argues Plaintiff gave “false, incomplete, and inaccurate” answers to
written interrogatories, and committed perjury at his deposition taken on September 26,
2017, by failing to mention criminal and other civil matters in which he was involved. As
a result, Defendant filed the now pending motion to dismiss, requesting dismissal of
Plaintiff’s claims, or alternatively, disqualification of Plaintiff as the representative of the

purported classes. Doc. #24. Defendant also seeks an award of attorney’s fees
associated with taking Plaintiff’s deposition and filing the instant motion.
Defendant argues the Court has the power to sanction Plaintiff for his conduct
under Federal Rule of Civil Procedure 37, and the authority “necessarily vested in
courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). To impose
sanctions under Rule 37, “there must be an order compelling discovery, a willful
violation of that order, and prejudice to the other party.” Chrysler Corp. v. Carey, 186
F.3d 1016, 1019 (8th Cir. 1999) (citation omitted); see also Fed. R. Civ. P. 37(b)(2). To
impose sanctions under the Court’s inherent authority to manage its docket, the Court
must find (1) clear and convincing evidence that misconduct occurred, and (2) that a
lesser sanction would not sufficiently punish and deter the abusive conduct while
allowing a full and fair trial on the merits. Martin v. DaimlerChrysler Corp., 251 F.3d
691, 694-95 (8th Cir. 2001) (citation omitted). Dismissal is a “drastic sanction” that
should be used sparingly because “the opportunity to be heard [on the merits] is a
litigant’s most precious right.” Carey, 186 F.3d at 1020 (quotations and citations
omitted).
This is a discovery dispute about interrogatory and deposition answers given to
Defendant by Plaintiff. The parties are aware Local Rule 37.1 governs discovery
disputes in this Court. Doc. #12, at 1. The rule requires parties to attempt to resolve
discovery disputes on their own prior to contacting the Court, at which time the Court
will hold a telephone conference to resolve the dispute. L. R. 37.1. The rule expressly
prohibits parties from filing a discovery related motion until the Court hears the dispute
during a telephone conference. Id. Although the parties’ briefs indicate some limited
discussion about this dispute was held prior to or shortly after Defendant filed its motion,
the parties did not comply with Local Rule 37.1. For this reason alone, Defendant’s
motion is denied.
The Court also declines to impose sanctions pursuant to Federal Rule of Civil
Procedure 37. Due to Defendant’s failure to comply with Local Rule 37.1, there is not
an order compelling discovery in this matter. Accordingly, sanctions pursuant to
Federal Rule of Civil Procedure 37 are not appropriate.
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The Court also declines to impose sanctions pursuant to its inherent authority to
manage its docket. After a thorough review of the parties’ briefs, and Plaintiff’s
deposition and interrogatory answers, the Court cannot find clear and convincing
evidence of misconduct worthy of either requested sanction. Plaintiff answered
Defendant’s interrogatories subject to general objections, and provided more specific
objections to the interrogatories at issue. Doc. #25-4. Similarly, Plaintiff’s deposition
testimony does not reveal clear and convincing evidence of misconduct as Plaintiff
responded to specific questions about the criminal and civil matters provided in his
interrogatory answers. Doc. #25-3, at 48-62.
While Plaintiff apparently omitted some information in his interrogatory answers,
the Court believes Plaintiff’s answers, or lack of information contained therein, are more
appropriately raised by Defendant at trial to impeach Plaintiff. Accordingly, the Court
denies Defendant’s motion to dismiss. Because the Court denies the motion, the Court
also denies Defendant’s request for attorney’s fees.

III. PLAINTIFF’S MOTION TO STRIKE
Plaintiff moves to strike certain answers and affirmative defenses contained in
Defendant’s answer (Doc. #23). Doc. #27. Specifically, Plaintiff asks the Court to strike
Defendant’s answers that state: (1) “In response to the allegations contained in
Paragraph (sic), Defendant states that the document speaks for itself and therefore no
response is required,” and (2) “Paragraph (sic) contains a legal conclusion to which no
response is required. To the extent a response is required, Defendant denies the
same.”1 Plaintiff also asks the Court to strike an assortment of Defendant’s affirmative
defenses, summarized here as defenses related to failure to state a claim, punitive
damages, waiver or estoppel, third-party conduct, and the statute of limitations.2
In responding to a pleading, a party must assert its defenses, and “admit or deny
the allegations asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1). A
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Plaintiff’s indicates the “speaks for itself” response was asserted in response to
Paragraphs10-14, 22-24, 39, and 61, while the “legal conclusion” response was
asserted in response to Paragraphs 1, 3, 16, 26, 31-35, 40-41, 45, 62-68, 71, and 7375.
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Specifically, Plaintiff asks the Court to strike Affirmative Defenses 1-2, 4, and 8-12.
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court may “strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The Court has discretion to
strike portions of a pleading, but doing so “is an extreme and disfavored measure.” BJC
Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) (quoting Stanbury
Law Firm, P.A. v. Internal Revenue Serv., 221 F.3d 1059, 1063 (8th Cir. 2000). “A
motion to strike a defense will be denied if the defense is sufficient as a matter of law or
if it fairly presents a question of law or fact which the court ought to hear.” Lunsford v.
United States, 570 F.2d 221, 229 (8th Cir. 1977) (citation omitted).
The Court declines to strike Defendant’s “speaks for itself” and “legal conclusion”
responses. Plaintiff has not asserted these responses are confusing or
incomprehensible, but rather that they are legally insufficient. These responses are
terms of art that do not prevent Plaintiff from understanding or comprehending
Defendant’s answer. See Eternal Invs., LLC v. City of Lee’s Summit, No. 05-0521,
2006 WL 573919, at *1 (W.D. Mo. Mar. 8, 2006). Defendant cannot alter the substance
or contents of the credit report at issue, but Defendant does dispute the underlying
claims. A “speaks for itself” response allows Defendant to defend itself while not
making a binding admission that Plaintiff may use against it later. The same can be
said of Defendant’s “legal conclusion” response made to assertions containing legal
conclusions such as a determination that Defendant is a “consumer reporting agency”
under the FCRA, or the credit report supplied by Defendant is misleading, inaccurate,
and damaging. The Court finds these responses are not insufficient, and denies
Plaintiff’s motion to strike Defendant’s answers to the previously identified paragraphs.
Plaintiff next asks the Court to strike some of Defendant’s affirmative defenses.
Defendant has agreed to withdraw its statement reserving the right to assert additional
affirmative defenses that become known through discovery. Doc. #31, at 11.
Withdrawal of that affirmative defense is appropriate because Defendant must proceed
according to Federal Rule of Civil Procedure 15’s guidance for amendment of pleadings
to assert additional affirmative defenses. The Court considers this affirmative defense
withdrawn.
The Court declines to strike the other affirmative defenses asserted by
Defendant. The Court finds the affirmative defenses attacked by Plaintiff are not
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insufficient as a matter of law, nor do these defenses contain redundant, immaterial,
impertinent, or scandalous matter. Accordingly, the Court denies Plaintiff’s motion.

IV. CONCLUSION
For the above reasons, the Court denies Defendant’s motion to dismiss (Doc.
#24), and denies Plaintiff’s motion to strike (Doc. #27).
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: January 9, 2018

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