McAfee v. IC System, Inc.

Filing 22

MEMORANDUM OPINION AND ORDER - IT IS ORDERED THAT: (1) Plaintiff's first motion to strike (doc. 8 ) is DENIED AS MOOT in light of the filing of Defendant's amended answer; (2) Plaintiff's second motion to strike (doc. 11 ) is DENIED for the reasons stated; (3) Plaintiff's motions to continue (docs. 14 , 18 ) are also DENIED. Said denial is without prejudice to Plaintiff's ability to move for an extension of deadlines, after consultation with defense counsel, should t he motion for judgment on the pleadings remain pending beyond 3/1/2025. Signed by Magistrate Judge Stephanie K. Bowman on 11/22/2024. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRANDEN MCAFEE,

Case No. 1:24-cv-474

Plaintiff,

Cole, J.
Bowman, M.J.

v.
IC SYSTEM, INC.,
Defendant

MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Branden McAfee, a frequent litigant in this Court,1 paid the requisite
filing fee and initiated this Fair Debt Collection Act case on September 3, 2024. Defendant
filed its answer on September 26, with an amended answer filed on September 30, 2024.
(Docs. 5, 9). Currently pending before the undersigned are four non-dispositive motions.
In addition to the non-dispositive motions, Defendant has moved for judgment on the
pleadings. Pursuant to local practice, all non-dispositive matters have been referred to
the undersigned magistrate judge.
I.

Analysis of Non-Dispositive Motions
A. Motions to Strike Defendant’s Affirmative Defenses (Docs. 8, 11)

Plaintiff moved to strike all affirmative defenses included in Defendant’s Answer.
The filing of Defendant’s amended answer rendered moot Plaintiff’s first motion to strike.
(Doc. 8). But after Defendant filed its amended answer, Plaintiff again moved to strike
based on the assertion that the defenses are “boilerplate” and are overly vague in violation
of the Rule 8 pleading standard interpreted in Bell Atl. Corp. v. Twombly, 550 U.S. 544

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See, e.g., Nos. 1:22-cv-110-SJD-SKB, 1:22-cv-216-MRB-KLL, 1:23-cv-351-DRC-KLL, 1:23-cv-444-JPHKLL, 1:23-cv-586-JPH-SKB, 1:23-cv-811-DRC-SKB, 1:24-cv-168-MRB-SKB.

(2007) and Ashcraft v. Iqbal, 556 U.S. 662 (2009). (Doc. 11). Defendant filed a response
in opposition to Plaintiff’s second motion to strike, to which Plaintiff has filed no timely
reply.
Plaintiff urges this Court to strike the defenses under the Iqbal/Twombly pleading
standard. The undersigned declines to do so. Although disposition of motions to strike is
discretionary, “[m]otions to strike are viewed with disfavor and are not frequently granted.”
Operating Eng’rs Loc. 324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1050
(6th Cir. 2015). No binding or controlling published authority within the Sixth Circuit holds
that the Iqbal/Twombly standard applies to affirmative defenses, and the unpublished
case law within the Sixth Circuit remains divided.
On the whole, the undersigned finds persuasive the body of case law that rejects
Plaintiff’s position. In McAfee v. Experian Info. Sols., No. 1:23-cv-444-JPH-KLL, 2024 WL
1242296 (S.D. Ohio Mar. 25, 2024), U.S. Magistrate Judge Karen Litkovitz recently
analyzed a similar motion made by the same Plaintiff. The undersigned finds Judge
Litkovitz’s analysis to be highly persuasive and adopts it in full:
The Sixth Circuit Court of Appeals has not yet addressed whether Twombly
and Iqbal apply to affirmative defenses. Kirkbride v. Kroger Co., No. 2:21cv-00022, 2023 WL 5723276, at *3 (S.D. Ohio Sept. 5, 2023) (citing
Depositors Ins. Co. v. Estate of Ryan, 637 F. App’x 864, 869 (6th Cir.
2016)). District courts in this circuit and, more narrowly, within the Southern
District of Ohio are split on this issue. Recently in GS Holistic, LLC v.
Lebanon Smokes & Things, Inc., No. 1:23-cv-638, 2024 WL 278173, at *1
(S.D. Ohio Jan. 25, 2024), the Court held that the heightened pleading
standards of Twombly-Iqbal do not apply to affirmative defenses. “Instead,
‘[a]n affirmative defense may be pleaded in general terms and will be held
to be sufficient . . . as long as it gives plaintiff fair notice of the nature of the
defense.’” Id. (quoting Pough v. Dewine, 2022 WL 2437140, at*1 (S.D. Ohio
Jul. 5, 2022) (quoting Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir.
2006) (in turn quoting 5 Wright & Miller, Federal Practice and Procedure §
1274))). Many judges within the Southern District of Ohio have held in
accord that Twombly and Iqbal do not apply to affirmative defenses. See
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Artisan Est. Homes, LLC v. Hensley Custom Bldg. Grp., LLC, No. 1:19-cv566, 2022 WL 2915586, at *6 (S.D. Ohio July 25, 2022); CCS Constr. Co.,
LLC, 2020 WL 6707300, at *2; Ohio ex re. Dewine v. Globe Motors, Inc.,
No. 3:18-cv-142, 2019 WL 3318354, at *2-3 (S.D. Ohio July 23, 2019); Ruff
v. Credit Adjustment, Inc., No. 2:18-cv-351, 2019 WL 4019464, at *2 (S.D.
Ohio Aug. 23, 2018); Sprint Solutions, Inc. v. Shoukry, No. 2:14-cv-00127,
2014 WL 5469877, at *2 (S.D. Ohio Oct. 28, 2014); Joe Hand Promotions,
Inc. v. Havens, No. 2:13-cv-93, 2013 WL 3876176, at *2 (S.D. Ohio Jul. 26,
2013).
In contrast, other judges within this district have held that that affirmative
defenses must comport with the Twombly-Iqbal pleading standards to
survive dismissal. See Kirkbride v. Kroger Co., No. 2:21-cv-22, 2023 WL
5723276, at *3 (S.D. Ohio Sept. 5, 2023); Lucid Health, Inc. v. Premier
Imaging Ventures, LLC, No. 2:20-cv-1055, 2020 WL 4933919, at *4 (S.D.
Ohio Aug. 24, 2020) (citing Doe v. Bd. of Educ. of Highland Local Sch. Dist.,
2:16-cv-524, 2017 WL 3588727, at *2 (S.D. Ohio Aug. 21, 2017)).
The undersigned has previously declined to apply the Twombly-Iqbal
pleading standards to affirmative defenses and continues to be persuaded
that this interpretation is consistent with Rule 8(a)(2).4 See CCS Constr.
Co., 2020 WL 6707300, at *3. A party wishing to assert an affirmative
defense in response to a pleading need only “affirmatively state any
avoidance or affirmative defense ....” Id. (quoting Fed. R. Civ. P. 8(c)(1)).
Pleading an affirmative defense in general terms is sufficient “as long as it
gives plaintiff fair notice of the nature of the defense” and satisfies both the
law and the spirit of Rule 8. Id. (quoting Lawrence v. Chabot, 182 F. App'x
442, 456 (6th Cir. 2006) (quoting 5 Wright & Miller, Federal Practice and
Procedure § 1274)). Therefore, as long as each of Experian's affirmative
defenses give fair notice to plaintiff of the nature of the defenses, the Court
will not strike them.
Other than his in-depth arguments that the Twombly-Iqbal pleading
standards should be applied in this case, plaintiff makes only sweeping
claims in his motion to strike rather than addressing each of Experian's
affirmative defenses. He broadly states that “all or nearly all of Defendant's
asserted affirmative defenses are, either, insufficiently pled or simply not
affirmative defenses. Such conclusory, shotgun assertions, absent factual
support and addressing the Plaintiff's complaint as a whole, as if each count
was like every other count, was insufficient as a matter of law.” (Doc. 12 at
PAGEID 85).
Plaintiff has also not addressed the factual allegations Experian has added
in its amended answer to buttress many of its affirmative defenses. It is not
the Court's duty to “conjure allegations on a litigant's behalf.” Baldwin v.
Hutson, No. 6:19-cv-151, 2020 WL 3530563, at *1 (E.D. Ky. June 30, 2020)
3

(quoting Erwin v. Edwards, 22 F. App'x. 579, 580 (6th Cir. 2001)); see also
Coleman v. Shoney's, Inc., 79 F. App'x 155, 157 (6th Cir. 2003) (“Pro se
parties must still brief the issues advanced with some effort at developed
argumentation.”). Issues that are presented “in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived.” Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007) (citations
omitted).
Id. at **3-4. Because the undersigned rejects Plaintiff’s premise that Twombly-Iqbal
applies, there is no need to further review the affirmative defenses under the standard
proposed by Plaintiff in his motion to strike. Nevertheless, the undersigned has reviewed
each of the four affirmative defenses asserted by Defendant, and finds that each provides
sufficient “fair notice” of the defense asserted.
B. Motions for Continuance (Docs. 14, 18)
On October 15, Plaintiff filed a motion seeking a “continuance pursuant to Rule
56(d)” in order to conduct fact discovery prior to the Court’s ruling on Defendant’s motion
for judgment on the pleadings. (Doc. 14). Plaintiff mistakenly refers to the Defendant’s
motion as a motion for “summary judgment.” However, as Defendant points out in
opposition,2 Defendant’s dispositive motion has not been filed under Rule 56, but under
Rule 12(c), Fed. R. Civ. P. In other words, the motion seeks judgment as a matter of law
based on alleged deficiencies in Plaintiff’s complaint. The scope of the Court’s review
under Rule 12(c) is appropriately limited to the pleadings. Because no discovery is
required for disposition of a motion filed under Rule 12(c), Plaintiff’s motion for a
continuance based on Rule 56 will be denied.
On October 23, 2024, Plaintiff filed a second motion to continue this case –
specifically, to “hold case deadlines in abeyance pending ruling on Defendant[’]s motion

2

Plaintiff filed no timely reply to Defendant’s response in opposition to his motion for a continuance to
conduct discovery.

4

for judgment on the pleadings and motion to expedite the ruling….” (Doc. 18). Plaintiff
seeks to continue or extend the April 1 discovery deadline based on his concern that the
6-month period for discovery “will come and go quite rapidly” during the time that
Defendant’s motion remains pending. In addition, Plaintiff expresses concern that
Defendant will “stall” on responding to his requests.
Although Defendant has yet to file a formal response to Plaintiff’s second motion,3
there is little doubt that both parties will benefit from an expedited ruling on the pending
dispositive motion. That said, Plaintiff’s deadline for filing a response to that motion only
recently expired on November 4, 2024. Now that Defendant’s motion appears to be fully
ripe and unopposed, the presiding district judge is likely to rule on it as promptly as his
docket allows. But Plaintiff’s motion to continue deadlines is premature at this point in
time. Discovery is not set to expire until April 1, 2025, and the dispositive motion deadline
is May 1, 2025. If Defendant’s motion remains pending after March 1, 2025, Plaintiff may
at that time file a more appropriate motion to extend deadlines if necessary.
II.

Conclusion and Order

Accordingly, IT IS ORDERED THAT:
1. Plaintiff’s first motion to strike (Docs. 8) is DENIED AS MOOT in light of the
filing of Defendant’s amended answer;
2. Plaintiff’s second motion to strike (Doc. 11) is DENIED for the reasons stated;
3. Plaintiff’s motions to continue (Docs. 14, 18) are also DENIED. Said denial is
without prejudice to Plaintiff’s ability to move for an extension of deadlines, after

3

Defendant’s response time does not expire until November 18, 2024. However, the Court finds no need to
await that response given the prematurity of Plaintiff’s motion.

5

consultation with defense counsel, should the motion for judgment on the
pleadings remain pending beyond March 1, 2025.

_s/Stephanie K. Bowman _______
Stephanie K. Bowman
United States Magistrate Judge

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