Perry v. Account Management Resources LLC et al
Filing
11
ORDER denying plaintiff's 7 motion to strike...see order for specifics. Signed by Honorable Joe Heaton on 8/24/2017. (cla)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SYLVAN A. PERRY,
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Plaintiff,
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vs.
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ACCOUNT MANAGEMENT RESOURCES, )
L.L.C., d/b/a CREDIT COLLECTIONS, INC., )
and BRADLEY V. FUDGE, d/b/a CREDIT
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COLLECTIONS, INC.
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Defendants.
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NO. CIV-17-627-HE
ORDER
Plaintiff filed this action against defendant Account Management Resources and
Bradley V. Fudge, asserting claims under the Fair Credit Reporting Act (“FCRA”) and the
Fair Debt Collection Practices Act (“FDCPA”). Defendants filed an answer which asserted
several affirmative defenses. Plaintiff has filed a motion to strike under Fed.R.Civ.P. 12(f),
seeking to strike three of Account Management Resources’ defenses.
Rule 12(f) states that “[t]he court may strike from a pleading an insufficient defense
. . . .” “Motions to strike are a severe remedy, and as such are generally disfavored.”
Sender v. Mann, 423 F. Supp. 2d 1155, 1163 (D. Colo. 2006). “A defense should not be
stricken ‘if there is any real doubt’ about its validity, and ‘the benefit of any doubt should
be given to the pleader.’” Id. (quoting Bobbitt v. Victorian House, Inc., 532 F. Supp. 734,
736-37 (N.D. Ill. 1982). A court “should decline to [strike] unless the allegations (1) have
no possible relation to the controversy, and (2) may prejudice one of the parties.” Rubio
ex. rel. Z.R. v. Turner Unified Sch. Dist. No. 202, 475 F. Supp. 2d 1092, 1101 (D. Kan.
2007).
Plaintiff objects to three affirmative defenses, claiming that he is unduly prejudiced
for having to exert time and resources to determine the applicability of the defenses. The
court has considerable doubt as to the necessity of dealing with such issues at such an early
stage of the litigation, as it seems the effort and time expended on this issue could best be
spent elsewhere. Still, the court has examined the defenses and the parties’ arguments, and
concludes that it need not strike any defense.
First, plaintiff objects to defendant’s defense that plaintiff fails to state a claim.
Plaintiff argues that defendant has not pleaded facts to show which claims fail. This
affirmative defense is related to the controversy in this case, as it goes to whether plaintiff
has actually stated a claim. And as far as prejudice, plaintiff need not address this issue
unless and until defendant files a motion to dismiss under Fed.R.Civ.P. 12(b)(6). An
answer to a complaint is not a motion under Rule 12. It requires no response to avoid
dismissal. There is no need to strike that defense.
Second, plaintiff objects to defendant’s defense that any violation of the FDCPA
was unintentional. While the affirmative defense is itself set out in the FDCPA, plaintiff
claims that defendant has not pleaded facts to make that affirmative defense viable. As
noted above, a defense should not be stricken if there is any real doubt as its validity. Here,
the court readily concludes that this affirmative defense is likely valid. Defendant’s failure
to provide detailed factual allegations supporting that defense does not necessitate striking
it.
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Finally, plaintiff challenges defendant’s request for fees and costs, claiming that
defendant has not established a potential entitlement to such fees and costs. Again, the
court need not strike this affirmative defense. While defendant has not yet established that
it may be entitled to fees and costs, plaintiff is not prejudiced by the inclusion of that
defense and the defense is related to the suit, as fees and costs are awardable under certain
provisions of the FDCPA.
Plaintiff’s motion to strike [Doc. #8] is DENIED.
IT IS SO ORDERED.
Dated this 24th day of August, 2017.
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