Peters v. Credit Protection Association LP
Filing
24
OPINION AND ORDER denying 18 Motion to Strike. Signed by Magistrate Judge Terence P Kemp on 3/17/2014. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael R. Peters,
:
Plaintiff,
:
v.
:
Credit Protection Association :
LP,
Defendant.
Case No.
2:13-cv-767
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
:
OPINION AND ORDER
This matter is before the Court on plaintiff Michael R.
Peters’ second motion to strike.
Defendant Credit Protection
Association LP has responded and the motion has been fully
briefed.
For the following reasons, the motion to strike will be
denied.
I.
Background
This is a putative class action filed under the Telephone
Consumer Protection Act and the FCC rules promulgated under that
Act.
Mr. Peters alleges that CPA, a debt collector, violated the
law by making artificial voice or prerecorded voice calls to him,
and others similarly situated, without obtaining prior express
consent.
Previously, Mr. Peters filed a motion to strike
affirmative defenses set forth in CPA’s original answer to the
complaint.
In its pretrial order issued December 4, 2013, the
Court granted CPA leave to file an amended answer and mooted the
motion to strike.
answer.
On December 5, 2013, CPA filed an amended
On December 26, 2013, Mr. Peters filed a second motion
to strike.
II.
The Motion to Strike
Mr. Peters’ motion to strike under Fed.R.Civ.P. 12(f) is
directed to the third and fourth affirmative defenses set forth
in the amended answer.
These defenses state as follows:
THIRD AFFIRMATIVE DEFENSE
(Equitable Defense)
3.
As a separate affirmative defense,
Plaintiff’s Complaint, and each cause of action alleged
therein is barred by doctrines of estoppel, waiver,
unclean hands, and other equitable doctrines. Upon
information and belief, Plaintiff’s equitable claims
are barred by his own action or inaction and his own
conduct or misconduct.
FOURTH AFFIRMATIVE DEFENSE
(Additional Defenses Unique to Putative Class)
4.
Defendant states that additional
affirmative defenses may exist as to individual class
members in the event a class is certified, such as
consent, the Voluntary Payment Doctrine, class members
who filed for Chapter 7 bankruptcy, estoppel, and other
individual defenses not presently known. Defendant
respectfully reserves the right to amend its
Affirmative Defenses to address those potential
defenses.
According to Mr. Peters, the equitable defenses of estoppel,
waiver and unclean hands must be stricken because they fail to
meet the pleading standard applicable to a motion under Federal
Rule of Civil Procedure 12(b)(6) as that standard is set forth in
Bell Atlantic Corp. v. Twombly, 550 U.S. 555 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
Those cases held that “a
complaint must contain sufficient factual matter ... to ‘state a
claim to relief that is plausible on its face.’”
at 678, quoting Twombly, 550 U.S. at 570.
Iqbal, 556 U.S.
Mr. Peters argues that
courts have applied this standard to affirmative defenses and
asserts that under this standard, the affirmative defenses
asserted by CPA are “only [] threadbare labels ... all
-2-
unsupported by a single operative fact.”
Strike (Doc. 18), p. 5.
See Second Motion to
Mr. Peters makes the same argument with
respect to the affirmative defense of “other equitable doctrines”
and further argues that this particular defense is legally
insufficient.
Finally, Mr. Peters contends that the fourth
affirmative defense is legally insufficient because it is nothing
but an attempt to reserve a right to amend.
Mr. Peters requests
that all of these defenses be stricken with prejudice.
In response, CPA asserts that the legal standard Mr. Peters
is advocating is more stringent than required by the Federal
Rules of Civil Procedure.
CPA explains, citing Montgomery v.
Wyeth, 580 F.3d 455 (6th Cir. 2009), that the Court of Appeals
for the Sixth Circuit has endorsed a more lenient standard with
respect to pleading affirmative defenses.
That is, CPA contends
that a simple statement which puts the plaintiff on notice of the
affirmative defense is sufficient.
Further, CPA notes that
granting a motion to strike is within the Court’ discretion and
that such motions generally are not favored.
In reply, Mr. Peters asserts that CPA’s violation of Twombly
and Iqbal is evidenced by its continued failure to set forth
operative facts in support of its affirmative defenses.
To the
extent that CPA argues that allowing its affirmative defenses to
stand in their current form will not result in harm to Mr.
Peters, he contends that if the defenses are harmless, CPA should
withdraw them.
At the same time, Mr. Peters argues that he will
be harmed if the defenses are not stricken because he will be
forced to engage in potentially costly discovery.
III.
Legal Standard
Fed.R.Civ.P. 12(f) provides that a court, on its own or upon
motion, “may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.”
As the Court of Appeals has recognized, “the action of striking a
-3-
pleading should be sparingly used by the courts” and should be
“resorted to only when required for the purposes of justice” and
when “the pleading to be stricken has no possible relation to the
controversy.”
Brown & Williamson Tobacco Corp. v. United States,
201 F.2d 819, 822 (6th Cir. 1953); see also Morrow v. South, 540
F.Supp. 1104, 1111 (S.D. Ohio 1982) (“Motions under Rule 12(f)
are not favored, and should not be granted unless it is apparent
that the matter has no possible relation to the controversy.”);
United States v. Firestone Tire & Rubber Co., 374 F.Supp. 431,
434 (N.D.Ohio 1974).
Further, as this Court has stated, “a motion to strike will
not be granted if the insufficiency of the defense is not clearly
apparent, or if it raises factual issues that should be
determined on a hearing on the merits.”
United States v. Pretty
Prod., Inc., 780 F.Supp. 1488, 1498 (S.D. Ohio 1991).
At the
same time, motions to strike “‘serve a useful purpose by
eliminating insufficient defenses and saving the time and expense
which would otherwise be spent in litigating issues which would
not affect the outcome of the case.’”
Id., quoting United States
v. Marisol, Inc., 725 F.Supp. 833, 836 (M.D. Pa. 1989).
IV.
Analysis
Mr. Peters contends that the Court is required to apply the
pleading standard set forth in Twombly and Iqbal to the
affirmative defenses asserted by CPA in this case.
As explained
below, the Court does not agree that such a heightened pleading
standard applies. While the Court acknowledges that some courts
in this Circuit have applied such a standard to affirmative
defenses, others have not.
See, e.g., HCRI TRS Acquirer, LLC v.
Iwer, 708 F.Supp.2d 687, 691 (N.D. Ohio 2010)(finding that the
pleading standard applies to the pleading of affirmative
defenses); Joe Hand Promotions, Inc. v. Havens, 2013 WL 3876176,
*2 (S.D. Ohio July 26, 2013)(King, M.J.) (“Plaintiff has not
-4-
persuaded this Court that a heightened pleading standard applies
to the assertion of affirmative defenses”).
Further, the Court of Appeals has not expressly held that a
heightened pleading standard applies to affirmative defenses.
Shreve v. Franklin County, Ohio, 2012 WL 1580936, *1 (S.D. Ohio
May 4, 2012).
This has been interpreted by district courts to
mean that “the Sixth Circuit does not require that affirmative
defenses show that the pleader is entitled to relief.”
Chiancone
v. City of Akron, 2011 WL 4436587, *3 (N.D. Ohio Sept. 23, 2011).
This understanding is consistent with other Court of Appeals
holdings.
For example, in Montgomery v. Wyeth, 580 F.3d 455, 468
(6th Cir. 2009), the court held that “[t]he Federal Rules of
Civil Procedure do not require a heightened pleading standard for
a statute of repose defense.”
Further, “‘[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.’”
Lawrence v. Chabot, 182 Fed.Appx. 442,
456 (6th Cir. 2006), quoting 5 Wright & Miller, Federal Practice
and Procedure § 1274); see also Davis v. Sun Oil Co., 148 F.3d
606, 612 (6th Cir. 1998) (finding that a defense alleging that
“Plaintiffs' claims are barred by the doctrine of res judicata ”
adequately put plaintiffs on notice).
This understanding also is consistent with the language of
Rule 8.
Rule 8(a)(2) requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
However, Rule 8(c)(1) requires only that “[i]n responding to a
pleading, a party must affirmatively state any avoidance or
affirmative defense ....”
As numerous courts have recognized,
Twombly’s analysis was limited to complaints and Rule 8(a)(2).
See, e.g., Petroci v. Transworld Systems, Inc., 2012 WL 5464597,
*2 (W.D.N.Y. Oct. 19, 2012) affirmed 2012 WL 5464579 (W.D.N.Y.
Nov. 8, 2012) (“Both Twombly and Iqbal focused on the language of
-5-
Rule 8(a)(2).”); Paleteria La Michoacana v. Productos Lacteos,
905 F.Supp.2d 189, 191 (D.D.C. 2012) (“Iqbal and Twombly
interpreted Rule 8(a)(2) which sets forth the pleading
requirements for a complaint.”); Cottle v. Falcon Holdings
Management, LLC, 2012 WL 266968, *2 (N.D. Ind. Jan. 30, 2012)
(“...the language relied on by the Supreme Court in Twombly and
Iqbal ... Fed.R.Civ.P. 8(a) ... is not contained in Rules 8(b) or
(c).”); Bennett v. Sprint Nextl Corp., 2011 WL 4553055, *1 (D.
Kan. Sept. 29, 2011)( “... in light of the difference between the
applicable provisions and the fact that the Supreme court relied
upon Rule 8(a)’s showing ... when formulating its plausibility
standard, the Court finds that Rule 8's language militates
against the application of the new pleading standard to
answers”).
Here, although CPA’s equitable defenses lack factual
detail, they do provide Mr. Peters fair notice of the nature of
CPA’s defense.
See Lawrence, 182 Fed.Appx. 442, at 456;
Montgomery, 580 F.3d at 468.
Consequently, these defenses, set
forth in CPA’s third affirmative defense, will not be stricken on
grounds that they have not met the pleading standards of Twombly
and Iqbal.
Likewise the Court will not strike the affirmative defense
of “other equitable defenses” or the fourth affirmative defense
which Mr. Peters argues is nothing more than an attempt to
reserve the right to amend.
defenses similarly.
The Court views these asserted
In both instances, CPA will be constrained
by the limits of Rule 15 and this Court’s scheduling order and
cannot bestow upon itself any greater rights by setting forth
such assertions in the form of affirmative defenses.
courts have accepted such reservations.
Other
See, e.g., Sony/ATV
Music Pub. LLC v. D.J. Miller Music Distributors, Inc., 2011 WL
4729807, *5 (M.D. Tenn. Oct. 7, 2011)(“Because Defendant retains
-6-
the right to amend its Answer under Rule 15(a), and because
district courts have found that a reservation of this right via
an affirmative defense is appropriate, the Court denies
Plaintiffs’ motion to strike....”); Bartram, LLC v. Landmark
American Ins. Co., 2010 WL 4736830, *7 (N.D. Fla. Nov. 16, 2010)
(“Although the language of the reservation is imprecise, the
Court denies Plaintiff’s motion to strike the reservation of
right to add affirmative defenses because Defendant does retain
the right to seek leave of Court to amend Defendant’s pleading”);
Centex Homes v. Mr. Stucco, Inc., 2008 WL 793587, *2 (M.D. Fla.
March 25, 2008) (“Defendant’s motion to strike the reservation is
unnecessary and serves only to waste this Court’s limited
resources”).
Consequently, the Court will not grant the motion
to strike as it relates to these affirmative defenses.
Finally, the Court notes that it is not persuaded that Mr.
Peters will be faced with a significant discovery burden if the
motion to strike is not granted.
As noted by the court in
Bennett, 2011 WL 4553055, *2 fn. 13, “... the fear that allowing
frivolous defenses to remain in the answer will exact a
measurable cost is greatly exaggerated. ... typically, no
discovery will take place on baseless defenses because it will be
readily apparent which affirmative defenses are not viable, and
the parties will act accordingly.”
See also Wells Fargo & Co. v.
U.S., 750 F.Supp.2d 1049, 1052 (D. Minn. 2010) (“In a typical
case, it quickly becomes apparent that most of the affirmative
defenses are not viable, and the parties simply ignore them.
judicial intervention is necessary”).
No
Consequently, the motion
to strike will not be granted on this ground.
V.
Order
For the reasons stated above, the second motion to strike
(Doc. 18) is DENIED.
APPEAL PROCEDURE
-7-
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).
The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.
The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?