Hinkle v. Experian Information Solutions, Inc. et al

Filing 29

ORDER denying 15 Motion to Strike. Signed by Magistrate Judge Dennis Howell on 3/27/2018. (kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18 cv 7
TERI LYNN HINKLE,

)
)
Plaintiff,
)
)
v.
)
)
EXPERIAN INFORMATIONS
)
SOLUTIONS, INC., et al.,
)
)
Defendants.
)
___________________________________ )

ORDER

Pending before the Court is Plaintiff’s Motion to Strike [# 15]. On January 8, 2018, pro se
Plaintiff filed her Complaint [# 1]. On February 12, 2018, Defendant Experian Information
Solutions, Inc., filed its Answer [# 5]. Defendant’s Answer raised five affirmative defenses [# 5].
On February 20, 2018, Plaintiff filed her Motion to Strike [# 15]. On March 6, 2018, Defendant
filed its Response to Plaintiff’s Motion to Strike [# 20]. Plaintiff asks the Court to strike
Defendant’s affirmative defenses because they are insufficient “as they fail to state legal or factual
defenses” [# 15, p. 1]. For the reasons below, the Court will deny the motion.
Background. In the Complaint, Plaintiff alleges three violations of the Fair Credit
Reporting Act [# 1, pp. 6–7]. Defendant’s Answer contains the following affirmative defenses: (1)
Plaintiff failed to state a claim for which relief can be granted; (2) Plaintiff failed to mitigate her
alleged damages; (3) comparative and contributory negligence; (4) estoppel; (5) the doctrine of
unclean hands [# 5, pp. 10–11].
Legal Standards. Under Fed. R. Civ. P. 12(f), the “Court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” either sua

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sponte or upon motion. Simaan, Inc. v. BP Products North American, Inc., 395 F. Supp. 2d 271,
278 (M.D.N.C. 2005). In a motion to strike, the burden is high and rests with the movant. Clark v.
Milam, 152 F.R.D. 66, 70 (S.D.W. Va. 1993). In evaluating a motion to strike defenses, a Court
must determine whether the challenged allegations are “so unrelated to plaintiffs claims as to be
unworthy of any consideration as a defense and that their presence in the pleading throughout the
proceeding will be prejudicial to the moving party.” Francisco v. Verizon South, Inc., No. 3:09CV-737, 2010 WL 2990159, at *5 (E.D. Va. July 29, 2010) (quoting 5C FED. PRAC. & PROC. CIV.
§ 1380 (3d. ed.)).
A defendant is only required to “state in short and plain terms its defenses to each claim
asserted against it.” Fed. R. Civ. P. 8(b). “The Federal Rules of Civil Procedure only require that
an affirmative defense be definite enough to put the plaintiff on fair notice of its nature.” Ferguson
v. Guyan Machinery Co., No. 93-2593, 1995 WL 20793, at *5 (Jan. 20, 1995) (citing Fed. R. Civ.
P. 8(c)); see also Clem v. Corbeau, 98 Fed. App’x. 197, 203 (4th Cir. 2004).
Discussion. The Court will assess each of Plaintiff’s arguments in turn.
Failure to state a claim for which relief can be granted. Understandably, Plaintiff confuses
the practice of preserving this defense and an actual motion to dismiss. See LCvR 7.1(c)(1).1
Defendant raised this defense in its Answer to preserve the issue and put Plaintiff on notice that
Defendant intends to file a motion to dismiss at a later date. Thus, Plaintiff is not deprived of Due
Process. Further, the practice is neither unfair nor prejudicial. The Court will not strike Defendant’s
first defense.

1

Under Local Civil Rule 7.1(c)(1):
Motions to dismiss in answers to complaints . . . are deemed to be made merely to preserve the issue
and will not be addressed by the Court. A party seeking a decision on any preserved motion must
file a separate motion and supporting brief.

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Failure to mitigate damages. Plaintiff’s claims are brought pursuant to 15 U.S.C. § 1681n.
Section 1681n states in part:
(a) In general
Any person who willfully fails to comply with any requirement imposed under this
subchapter with respect to any consumer is liable to that consumer in an amount
equal to the sum of—
(1)(A) any actual damages sustained by the consumer as a result of the failure
or damages of not less than $100 and not more than $1,000 . . .
15 U.S.C. § 1681n (emphasis added).
Plaintiff argues that the defense of failure to mitigate is not applicable because it is “not a
defense to an award of statutory damages.” [# 15, p. 3]. The text of the statute, however, clearly
states that the remedy may include actual damages. For this reason, the Court will not strike
Defendant’s second defense.
Comparative fault and contributory negligence. The Court reiterates that the standard
regarding a motion to strike a defense is whether Defendant gave Plaintiff fair notice of the
defense. The Court finds that this defense is properly pled and gives Plaintiff fair notice.
Accordingly, the Court will not strike Defendant’s third defense.
Estoppel. The Court finds that Defendant’s estoppel defense is properly pled and gives
Plaintiff fair notice. Further, the defense does not appear to be ‘irrelevant’ or ‘frivolous.’ The Court
will not strike Defendant’s fourth defense.
The doctrine of unclean hands. It is unclear to the Court if pro se Plaintiff seeks equitable
relief [# 1, ¶¶ 22–28]. Equitable relief includes asking the Court to require someone to do
something or prohibit someone from doing something (e.g., requiring a party to produce
information and documents). While Plaintiff states in her motion to strike that she is not seeking
equitable relief, the Court will liberally construe Plaintiff’s Complaint to include a possible claim

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equitable relief. Thus, the Court will allow Defendant’s defense as to any claim of equitable relief
Plaintiff might have asserted.
ORDER
For the reasons stated, the Court DENIES the motion to strike [# 15].

Signed: March 27, 2018

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