Duncan v. MARS Inc

Filing 10

ORDER granting in part and denying in part 9 Motion for Partial Summary Judgment; granting 9 Motion to Strike Certain Affirmative Defenses (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NATHAN DUNCAN,

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Plaintiff,
v.
M.A.R.S., INC.,
Defendant.

Case No. CIV-14-825-D

ORDER
Before the Court is Plaintiff’s Motion for Partial Summary Judgment on the Pleadings or,
in the Alternative, Motion to Strike Certain Affirmative Defenses [Doc. No. 9]. Defendant has not
responded to the motion and the time for doing so has passed. Therefore, pursuant to LcvR 7.1(g)
the Court may, in its discretion, deem the motion confessed.
I.

Governing Standard
Plaintiff has moved under both Rules 12(c) and 12(f) of the Federal Rules of Civil

Procedure. The Court, however, will construe the motion as a motion to strike Defendant’s
affirmative defenses under Fed. R. Civ. P. 12(f).1

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As one court has aptly explained:

A Rule 12(c) motion for judgment on the pleadings is more appropriately resolved where ‘all material
allegations of fact are admitted or not controverted in the pleadings and only questions of law remain
to be decided by the district court.’ 5C WRIGHT & MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1367, at 208 (3d ed.2004). On the other hand, a Rule 12(f) motion to strike is more
fitting for situations, such as the one presented, where a plaintiff challenges only some of the defenses
raised in a defendant’s pleading. Id. § 1369 at 260 (noting that Rule 12(f) ‘serves as a pruning device
to eliminate objectionable matter from an opponent's pleadings and, unlike the Rule 12(c) procedure,
it is not directed at gaining a final judgment on the merits’).
Haley Paint Co. v. E.I. Du Pont De Nemours and Co., 279 F.R.D. 331, 335 (D. Md. 2012).

Pursuant to Rule 12(f), a “court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Under Rule 12(f), a
defense is insufficient if it cannot succeed, as a matter of law, under any circumstances. United
States v. Hardage, 116 F.R.D. 460, 463 (W.D.Okla.1987).“On a motion to strike affirmative
defenses, the Court must examine each affirmative defense at issue to ascertain whether any question
of fact or law is raised by the defense. If a defense raises such a question, then the motion to strike
is improper and the issue must be decided subsequently on the merits, when more information is
available.” Id. While motions to strike are a drastic remedy and, therefore, generally disfavored by
courts, it is within a court’s discretion whether to grant them. Id., see also Sierra Club v. Tri–State
Generation and Transmission Ass’n, Inc., 173 F.R.D. 275, 285 (D. Colo.1997).
II.

Discussion
A.

Second Affirmative Defense – Injunctive or Declaratory Relief

Plaintiff moves to strike the Second Affirmative Defense which states succinctly: “Plaintiff
is not entitled to injunctive or declaratory relief.” See Answer [Doc. No. 8] at ECF p. 9. Plaintiff
does not bring any claim for injunctive or declaratory relief and expressly acknowledges the same
in moving to strike the Second Affirmative Defense. See Plaintiff’s Motion at p. 8. Therefore, the
Second Affirmative Defense is stricken as insufficient, immaterial and impertinent.

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B.

Seventh, Ninth and Eleventh Affirmative Defenses Arising Under the Telephone
Consumer Protection Act

Plaintiff additionally moves to strike Defendant’s Seventh, Ninth and Eleventh Affirmative
Defenses on grounds these affirmative defenses arise under the Telephone Consumer Protection Act
(TCPA),47 U.S.C. § 227. Plaintiff has not brought claims against Defendant pursuant to the TCPA.
Instead, Plaintiff’s single cause of action alleges a violation of the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692 et seq. Accordingly, the Court strikes the Defendant’s Seventh,
Ninth and Eleventh Affirmative Defenses as insufficient defenses that are also immaterial and
impertinent.
C.

Tenth Affirmative Defense – Statute of Limitations

The face of Plaintiff’s Complaint clearly identifies that the wrongs complained of occurred
in January and February 2014. As Plaintiff correctly states, a one year period of limitations governs
claims brought under the FDCPA. See 15 U.S.C. § 1692k(d) (a claim for relief under the FDCPA
must be brought “within one year from the date on which the violation occurs”). Plaintiff filed his
complaint on August 5, 2014. Based on the allegations of the Complaint and Defendant’s failure
to respond to Plaintiff’s motion to strike thereby permitting the Court to find the matter confessed,
the Court finds the Tenth Affirmative Defense should be stricken.
D.

First, Third and Fourth Affirmative Defenses

Plaintiff moves to strike the First, Third and Fourth Affirmative Defenses on grounds
Defendant has failed to satisfy the pleading requirements of Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The First Affirmative Defense is failure
to state a claim upon which relief may be granted. The Third Affirmative Defenses addresses issues
of causation. And the Fourth Affirmative Defense is based on issues of authority to act.
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The Federal Rules of Civil Procedure require a party responding to a pleading to “state in
short and plain terms its defenses to each claim asserted against it” and to “affirmatively state any
avoidance or affirmative defense.” Fed. R. Civ. P. 8(b) and (c). The Tenth Circuit has not addressed
whether the pleading standards announced in Twombly and Iqbal apply to affirmative defenses. The
federal district courts within the Tenth Circuit have reached diverging views on the issue. Compare
Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 650 (D. Kan. 2009) (holding that the Twombly /
Iqbal standard is applicable to affirmative defenses); with Wells v. Hi Country Auto Group, 982 F.
Supp.2d 1261, 1264 (D. N.M. 2013) (declining to apply pleading standard of Twombly / Iqbal to
affirmative defenses). As addressed in Plaintiff’s motion, the courts within this judicial district have
also reached opposite conclusions on the issue.
This Court finds it unnecessary to decide the issue at this time. Even if the Court were to
apply Twombly and Iqbal, the Court concludes that the First, Third and Fourth Affirmative Defenses
are sufficient and should not be stricken. Because Plaintiff brings only one claim, the affirmative
defense of failure to state a claim is sufficiently pled. The basis for that defense is elucidated when
viewed in conjunction with the other affirmative defenses raised and the allegations of the
Complaint which are necessarily incorporated into the Defendant’s recitation of affirmative
defenses. For these same reasons, Plaintiff has sufficient notice of a plausible basis for the Third
and Fourth Affirmative Defenses. Therefore, Plaintiff’s First, Third and Fourth Affirmative Defense
should not be stricken.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike is GRANTED as to
Defendant’s Second, Seventh, Ninth, Tenth and Eleventh Affirmative Defenses.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike is DENIED as to Defendant’s
First, Third and Fourth Affirmative Defenses.
IT IS SO ORDERED this 4th day of November, 2014.

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