Bruner v. Midland Funding LLC et al
Filing
92
ORDER denying 73 Plaintiff's Motion to Strike Affirmative Defenses. Signed by Honorable Timothy D. DeGiusti on 1/25/2018. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DANNIELLE BRUNER,
Plaintiff,
vs.
MIDLAND FUNDING, LLC, et al.,
Defendants.
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Case No. CIV-16-1371-D
ORDER
Before the Court is Plaintiff Dannielle Bruner’s Motion to Strike Pursuant to Fed.
R. Civ. P. 12(f) [Doc. No. 73] and Brief in Support [Doc. No. 74]. Defendant Encore
Capital Group, Inc., has filed its Response [Doc. No. 75]. The matter is fully briefed and
at issue.
BACKGROUND
Plaintiff contends the defendant companies engage in unlawful credit reporting and
debt collection practices. Motion to Strike, 1. She moves to strike Defendant Encore’s
Affirmative Defenses Nos. 1, 2, 3, 4, 5, and 6 as well as Defendant Encore’s request for
relief in the form of costs and attorney fees. Plaintiff asserts these defenses and this request
for relief are legally and factually insufficient pursuant to Rule 12(f), Federal Rules of Civil
Procedure. The Affirmative Defenses at issue state:
1.
Plaintiff has failed to state a claim against Encore upon which relief
may be granted.
2.
The Court does not have personal jurisdiction over Encore, as Encore
does not transact business in Oklahoma, is not incorporated in
Oklahoma, and its principal place of business is not in Oklahoma.
3.
Encore at all times followed the requirements of the FCRA and
established and followed reasonable procedures to avoid violations of
the FCRA.
4.
Any alleged damages of Plaintiff, which Encore continues to deny, is
the result of the acts or omissions of Plaintiff or others over whom
Encore has no control and for whom it has no responsibility.
5.
Plaintiff failed to mitigate her alleged damages.
6.
Plaintiff’s claims are barred by the statute of limitations.
Defendant Encore Group’s Answer to Amended Complaint [Doc. No. 70], 23.
Plaintiff argues that the aforementioned defenses and request for relief are factually
insufficient to provide notice and will unduly prejudice Plaintiff. Plaintiff also asserts that
the defenses fail to meet the standards set forth in Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 556 U.S. 663 (2009),1 and that Encore has made
admissions which vitiate Affirmative Defense No. 2. Defendant Encore, in response, states
1
Both Parties acknowledge that the Tenth Circuit has not yet addressed whether the
heightened pleading standards set forth in Twombly and Iqbal, supra., apply to affirmative
defenses and that there is a split among district courts as to conclusions on the matter.
Therefore, there is no controlling authority on this issue. However, this Court has
consistently “concluded that the Twombly/Iqbal standard does not apply with the same
force to affirmative defenses.” Franco v. Goodwill Shops S., LLC, CIV-17-897-D, 2017
WL 6459807, at *1 (W.D. Okla. Dec. 18, 2017) (quoting Wilson v. Lady Di Food Groups
Holding, LLC, No. CIV-16-1424-D, 2017 WL 1458783, at *1 (W.D. Okla. Apr. 24, 2017));
see also, Holt v. Roy Blackwell Enter., Inc., No. CIV-15-326-D, 2016 WL 319894, *3 n. 3
(W.D. Okla. Jan. 26, 2016)). The Court sees no need to address the issue of whether to
apply Twombly and Iqbal to affirmative defenses.
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the challenged defenses and request for relief provide Plaintiff with adequate notice, do not
prejudice Plaintiff, and that Twombly and Iqbal standards do not apply.2
STANDARD OF DECISION
The Court “may strike from a pleading an insufficient defense, or any redundant,
immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). However, such relief
is a severe remedy and generally disfavored. United States v. Hardage, 116 F.R.D. 460,
463 (W.D. Okla. 1987); see also, Sender v. Mann, 423 F. Supp. 2d 1155, 1163 (D. Colo.
2006). In fact, such motions, in addition to being disfavored, are often “considered purely
cosmetic or ‘time wasters.’” Lane v. Page, 272 F.R.D. 581, 587 (D.N.M. 2011) (quoting
5C C. Wright & A. Miller, Federal Practice & Procedure § 1382 (3d. ed.2004)); see also,
Tavasci v. Cambron, CIV 16-0461 JB/LF, 2016 WL 6405896, at *7 (D.N.M. Oct. 25, 2016)
(quoting the transcript of the hearing on the motions to strike in which the court described
motions to strike as “busywork” that “crowd the docket.”).
A defense should not be stricken “if there is any real doubt about its validity, and
‘the benefit of the doubt should be given to the pleader.’” Sender, 423 F. Supp. 2d at 1163
(quoting Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 736-37 (N.D. Ill. 1982)). As
stated in Bobbitt, 532 F.Supp. at 736, “the very possibility of waiver makes it important
(and certainly prudent) to plead all appropriate affirmative defenses,” and “the cautious
pleader is fully justified in setting up as affirmative defenses anything that might possibly
2
Defendant Encore withdraws Affirmative Defense No. 6. Defendant’s Response,
7.
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fall into that category, even though that approach may lead to pleading matters as
affirmative defenses that could have been set forth in simple denials.”
Motions to strike “must not be granted unless, as a matter of law, the defense cannot
succeed under any circumstances.” United States v. Hardage, 116 F.R.D. 460, 463 (W.D.
Okla. 1987). That is, “unless the challenged allegations have no possible relation or logical
connection to the subject matter of the controversy and may cause some sort of significant
prejudice to one or more of the parties to the action” motions to strike should be denied.
Wilson v. Lady Di Food Groups Holding, LLC, No. CIV-16-1424-D, 2017 WL 1458783,
at *1 (W.D. Okla. Apr. 24, 2017) (quoting 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1382 (3d ed. 2004)); see also Holt v. Roy Blackwell
Enterprises, Inc., No. CIV-15-326-D, 2016 WL 319894, at *2 (W.D. Okla. Jan. 26, 2016)
(citations omitted). An “abbreviated statement of the defense, considered in context with
the complaint to which the defenses are addressed, will sufficiently apprise a party of the
nature of the defense for pleading purposes.” Henson v. Supplemental Health Care Staffing
Specialists, No. CIV-09-397-HE, 2009 WL 10671291, at *1 (W.D. Okla. July 30, 2009),
DISCUSSION
The defenses at issue state Defendants’ position with regard to (1) certain elements
of Plaintiff’s claims, such as compliance with the statutes on which Plaintiff bases her
claims (Affirmative Defenses Nos. 1, 3, and 4), (2) the availability of certain remedies
(Affirmative Defense No. 5), and, (3) whether this Court has personal jurisdiction
(Affirmative Defense No. 2).
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I.
Affirmative Defense Nos. 1, 3, 4 and 5.
Plaintiff brings claims alleging Defendant Encore has violated the Fair Credit
Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”) and the Fair Debt Collection Practices
Act, 15 U.S.C § 1692 et seq. (“FDCPA”).3 Read in context with the allegations of the
Amended Complaint [Doc. No. 27], “which are necessarily incorporated into the
Defendant’s recitation of affirmative defenses,” Defendant Encore’s Affirmative Defense
Nos. 1, 3, 4 and 5 provide Plaintiff sufficient notice. Duncan v. M.A.R.S., Inc., 2014 WL
5681185 *2 (W.D. Okla. 2014). Because Plaintiff brings claims against Defendant Encore
based only on the FCRA and FDCPA, these affirmative defenses “contain sufficient detail
to indicate the relationship of the defense to the claims asserted and to avoid undue
prejudice” to the plaintiff. Wilson, 2017 WL 1458783 at *2; Holt, 2016 WL 319894 at *3;
see also Franco v. Goodwill Shops S., LLC, CIV-17-897-D, 2017 WL 6459807, at *2
(W.D. Okla. Dec. 18, 2017) (quoting Wilson, 2017 WL 1458783 at *2, and Holt, 2016 WL
319894 at *3).
Affirmative Defense No. 1 is clearly understood to relate to a failure of Plaintiff to
state a claim as to the FCRA and the FDCPA. Affirmative Defense No. 3 states in simple
terms that Defendant Encore complied with the FCRA. In Franco, Wilson, and Holt, cited
supra., this Court declined to strike defenses similarly stating that the defendants had
complied with the federal statutes upon which the plaintiffs based their claims. As to
3
Defendant Encore states that the Court dismissed Plaintiff’s FDCPA claim in
Order [Doc. No. 67]. However, that Order dismissed Plaintiff’s FDCPA claim as to
Defendants Midland Funding, LLC, and Midland Management, Inc. Order [Doc. No. 67],
9.
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Affirmative Defense No. 4, Plaintiff has brought claims for damages against multiple
defendants. Therefore, construed in context with the Amended Complaint, Defendant
Encore’s Affirmative Defense No. 4 provides sufficient notice of its position that Plaintiff’s
damages were cause by others over whom Defendant Encore had no control or
responsibility. Likewise, Affirmative Defense No. 5 clearly relates to Plaintiff’s claim for
actual damages.
Based on its review of Defendant Encore’s Answer, in conjunction with Plaintiff’s
Amended Complaint, the Court finds that there is sufficient detail describing the
relationship of the challenged defenses to the claims asserted and to avoid undue prejudice
to Plaintiff.
II.
Affirmative Defense No. 2.
Plaintiff challenges Defendant Encore’s Affirmative Defense No. 2 solely on the
basis that because Defendant Encore admitted that venue is proper in this jurisdiction, it
has waived any objection to personal jurisdiction.4
In its Answer to the Amended Complaint [Doc. No. 70], ¶12, ¶14, ¶15 and ¶16,
Defendant Encore states “Encore admits venue is proper in this judicial district,” but it
denies in ¶13 that this Court has personal jurisdiction. Defendant Encore does not simply
4
Venue should not be confused with personal jurisdiction. Res. Associates Grant
Writing & Evaluation Servs., Inc. v. Southampton Union Free Sch. Dist., 193 F. Supp. 3d
1200, 1226 (D.N.M. 2016). “The purpose of venue is to assure that lawsuits are filed in
appropriately convenient courts for the matters raised and for the parties involved in the
action.” Res. Associates Grant Writing & Evaluation Servs., Inc., 193 F. Supp. 3d at 1225–
26 (citing Leroy v. Great W. United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 61 L.Ed.2d
464 (1979)). Personal jurisdiction refers to a “court’s power to exercise control over the
parties.” Leroy, 443 U.S. at 180.
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admit the paragraphs in which Plaintiff asserts various specific grounds for venue.
Defendant Encore makes no distinction in its admission of proper venue as to which type
of venue under 28 U.S.C. § 1391(b) it admits.
Taken in context with the Amended Complaint, there is sufficient detail describing
the relationship of Affirmative Defense No. 2 to the claims asserted and to avoid undue
prejudice to Plaintiff, and Defendant Encore did not admit that it is subject to personal
jurisdiction. Plaintiff’s Motion to strike Affirmative Defense No. 2 is denied.
III.
Defendant’s Request for Costs and Attorney Fees.
Plaintiff presents no authority for challenging Defendant’s request for relief in the
form of costs and attorney fees in a motion to strike under Rule 12(f). Plaintiff argues that
because Defendant does not allege bad faith, Defendant’s request for relief is not supported
under the provisions of the FCRA and the FDCPA or factually on the face of Defendant’s
Answer. Plaintiff acknowledges that there are instances in which costs and attorney fees
may be awarded to a defendant under the FCRA and FDCPA.
Defendant Encore’s request for relief is neither a defense nor “redundant,
immaterial, impertinent, or scandalous” material subject to a motion to strike under Rule
12(f). Plaintiff’s motion to strike as to Defendant Encore’s request for relief in the form of
costs and attorney fees is denied.
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CONCLUSION
Plaintiff’s Motion to Strike Affirmative Defenses [Doc. No. 73] is DENIED as set
forth herein.5
IT IS SO ORDERED this 25th day of January 2018.
5
Defendant Encore has withdrawn Affirmative Defense No. 6. Accordingly,
Plaintiff’s Motion with respect to that issue is considered Moot.
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