Cohen v. SunTrust Mortgage Inc et al

Filing 49

OPINION and ORDER granting in part and denying in part 34 MOTION for Judgment on the Pleadings as to Defendant Experian's Affirmative Defenses and Prayer for Attorneys' Fees. Signed by Honorable Cameron McGowan Currie on 3/30/2017. (cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Harvey Cohen,

C/A No. 3:16-cv-02513-CMC

Plaintiff,
v.
SunTrust Mortgage, Inc., SunTrust Bank,
Trans Union, LLC, Equifax Information
Services, LLC, and Experian Information
Solutions, Inc.,

Opinion and Order on Motion for Judgment
on the Pleadings as to Affirmative Defenses
ECF No. 34

Defendants.

This matter is before the court on Plaintiff’s “Motion for Judgment on the Pleadings as to
Defendant Experian’s Affirmative Defenses and Prayer for Attorneys’ Fees.” ECF No. 34. This
motion challenges all affirmative defenses asserted by Defendant Experian Information Solutions,
Inc. (“Experian”) as well as its inclusion of a prayer for attorneys’ fees. Id. For reasons set forth
below, the motion is denied in part and granted in part. 1
Nature of Motion. Plaintiff relies on Rule 12(c) of the Federal Rules of Civil Procedure
in seeking judgment on Experian’s affirmative defenses. Rule 12(c) provides as follows: “After
the pleadings are closed—but early enough not to delay trial—a party may move for judgment on
the pleadings.” Fed. R. Civ. P. 12(c).
Experian argues Rule 12(f), rather than Rule 12(c), controls. Rule 12(f) provides the court
may, on its own or on motion of a party, “strike . . . an insufficient defense or any redundant,

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Plaintiff filed a similar motion challenging the affirmative defenses asserted by Defendant
Equifax Information Services, LLC (“Equifax”). ECF No. 33. That motion was granted as
unopposed based on the absence of any response, and consequently has no precedential value as
to the underlying issues. ECF No. 44.

immaterial, impertinent, or scandalous matter” from “a pleading.” Fed. R. Civ. P. 12(f). A motion
to strike under this rule must be made “before responding to the pleading or, if a response is not
allowed, within 21 days after being served with the pleading.” Fed. R. Civ. P. 12(f)(2). Experian
argues Plaintiff’s motion is untimely under this rule because Plaintiff was served with the
challenged Answer and Affirmative Defenses on August 4, 2016, but waited over six months (until
February 13, 2017) to file the present motion.
On reply, Plaintiff argues pursuit of his motion under Rule 12(c) is authorized by Rule
12(h)(2). That rule provides, in relevant part: “Failure . . . to state a legal defense to a claim may
be raised; . . . (B) by a motion under Rule 12(c).” Fed. R. Civ. P. 12(h)(2).
The court finds the motion is appropriately characterized as a Rule 12(f) motion to strike
an insufficient defense to the extent it argues the defenses fail because Experian has not alleged
supporting facts, rather than a motion under Rule 12(c) for judgment on the pleadings for “failure
. . . to state a legal defense.” See Fed. R. Civ. P. 12(h)(2)(B); see also Amason v. PK Management,
LLC, C.A. No. 3:10-cv-1752-JRM-JFA, 2011 WL 1100169 (D.S.C. Mar. 23, 2011) (adopting
Report and Recommendation 2011 WL 110021 (D.S.C. Mar. 1, 2011)).2 This characterization fits
Plaintiff’s primary argument, which relies on the absence of supporting factual allegations. See
ECF No. 34-1 at 5 (“No facts–none–are pled in support of Experian’s affirmative defenses at all.
They are bare invocations of legal principles only, at best.”). With minor exceptions (see “Other

2

In Amason, the magistrate judge recommended plaintiff’s “motion to dismiss” defendant’s
affirmative defenses be denied on two grounds: (1) the motion was properly construed as a Rule
12(f) motion and was untimely as such; and (2) the Twombly-Iqbal standard (discussed infra) did
not apply to affirmative defenses. 2011 WL 1100211 at *8. The district judge adopted the
magistrate judge’s recommendation based on the first ground and did not reach the second ground.
2011 WL 1100169 at *8.
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Arguments” below), Plaintiff does not argue the defenses are legally unavailable based either on
the facts or legal theories pleaded.
The court rejects any argument a party may challenge the sufficiency of a defense (other
than on grounds the defense is legally unavailable) under Rule 12(c). Allowing reliance on Rule
12(c) under such circumstances would render meaningless the time limitation for a Rule 12(f)(2)
motion. 3
Timeliness of Motion. The challenged Answer and Affirmative Defenses was served
through the court’s electronic case filing system on August 4, 2016. ECF No. 11. The motion
challenging the affirmative defenses and prayer for relief was not filed until February 13, 2017.
ECF No. 34. Thus, the motion is clearly untimely as a Rule 12(f) motion. It is, therefore, denied
as untimely to the extent it rests on arguments the affirmative defenses are insufficiently pleaded.
Inapplicability of Twombly-Iqbal pleading standard. Even if timely, the court would
deny the motion to the extent it argues for judgment on (or striking of) affirmative defenses based
on the pleading standard established by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court recognizes this is both an issue on which district
courts are divided and one on which there is no direct circuit court authority. See, e.g., Baron v.
DirectTV, LLC, ___ F. Supp. 3d ___, 2017 WL 68688 (D. Md. 2017) (declining to apply TwomblyIqbal standard to affirmative defenses); Lockheed Martin Corp. v. United States, 973 F. Supp. 2d
591 (D. Md. 2013) (same); Sedgewick Homes, LLC v. Stillwater Homes, Inc., 2016 WL 4499313

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The distinction this court draws has the practical effect of requiring a party who believes a
defense is insufficiently pleaded (that is, pleaded in a way that fails to give fair notice of the basis
of the defense) to raise it promptly, yet preserves that party’s right to later argue one or more
defenses are unavailable as a matter of law taking all pleadings into consideration.
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(W.D.N.C. August 25, 2016) (same); Grant v. Bank of America, N.A., 2014 WL 792119 (E.D. Va.
Feb. 25, 2014) (same); Amason, 2011 WL 1100169 (same); Monster Daddy LLC v. Monster Cable
Products, Inc., C.A. No. 6:10-1170-HMH *12-16 (D.S.C. Nov. 23, 2010) (finding Twombly-Iqbal
standard applicable to affirmative defenses).
The closest circuit court decision is Kohler v. Flava, 779 F.3d 1016 (9th Cir. 2015), which
affirmed summary judgment for a defendant based, in part, on a finding the plaintiff had adequate
notice of a defense. The court did not address Twombly or Iqbal, but held “the ‘fair notice’ required
by the pleading standards only requires describing the defense in ‘general terms.’” Id. at 1019
(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 (3d
ed. 1998)). District courts in the Ninth Circuit have relied on Kohler in declining to apply the
Twombly-Iqbal pleading standard to affirmative defenses. See, e.g., Sherwin-Williams Co. v.
Courtesy Oldsmobile-Cadillac, Inc., 2016 WL 615335 *3 (E.D. Cal 2016) (stating “every judge
in this district that has evaluated the split [as to whether the Twombly-Iqbal standard applies to
affirmative defenses] in light of the Kohler decision has found that the fair notice standard should
apply.”).
Courts in other circuits have also relied, in part, on Kohler in declining to extend the
Twombly-Iqbal standard to affirmative defenses. See, e.g., Ability Housing of N.E. Florida, Inc.,
v. City of Jacksonville, 2016 WL 816586 (M.D. Fla. 2016). This court finds Ability Housing’s
summary of the case law helpful and its reasoning persuasive:
Courts extending the Iqbal-Twombly standard to defenses typically do so
for three reasons. First, fairness and historical practice dictate that the same
standard should apply to both sides alike. Second, similar language calls for similar
interpretations. Third, the primary policy behind the Iqbal-Twombly standard
(weeding out frivolous claims early) applies equally to affirmative defenses.

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Courts refusing to extend the Iqbal-Twombly standard to defenses typically
do so for two reasons. First, the text of Rule 8 does not support the extension.
Whereas its pleading provision uses “showing,” its response and affirmativedefense provisions use “state,” and the analyses in Iqbal and Twombly relied on
“showing.” Second, the 21-day response period is insufficient to gather
information to include supporting factual allegations.
While no circuit court has addressed the issue in detail, the Ninth Circuit
implicitly declined to extend the Iqbal-Twombly standard to defenses in [Kohler].
Kohler rejected the plaintiff’s argument he had insufficient notice of stated
defenses, observing “the ‘fair notice’ required by the pleading standards only
requires describing the defense in ‘general terms.”’ Id. at 1019 (quoting 5 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 (3d ed.
1998)).
The former approach [applying Twombly-Iqbal to affirmative defenses] is
now the minority approach. Note, An Implausible Standard for Affirmative
Defenses, 112 Mich. L. Rev. 275, 285 (2013). Persuaded by the latter approach
and its fidelity to both the rule that a court must give effect to a law that has plain
and unambiguous meaning, United States v. Silva, 443 F.3d 795, 797−798 (11th
Cir. 2006), and the longstanding adversity to striking a defense from a pleading
unless it has no possible connection to the controversy and might prejudice a party
if it remains (an adversity left untouched by Iqbal and Twombly), [this court]
applies that approach here and declines to strike the eighth, ninth, and tenth
defenses on the ground they do not include supporting factual allegations.
Ability Housing, 2016 WL 816586 at *2 (footnotes omitted); see also Baron, 2017 WL 68688 at
*2 (relying, in part, on different pleading standards under Fed. R. Civ. P. 8(a) and 8(b) in holding
Twombly-Iqbal pleading standard inapplicable to affirmative defenses and rejecting other
arguments for striking defenses where there was no showing substantial prejudice was likely to
result if the affirmative defenses remained in the case).
This court joins what appears to be the recent trend in finding the Twombly-Iqbal standard
inapplicable to affirmative defenses. Plaintiff’s motion is denied to the extent it rests on this
standard.
Other arguments. Plaintiff makes three additional arguments for judgment on the
pleadings. These arguments are directed to (1) an affirmative defense punitive damages are
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unconstitutional; (2) a purported reservation of the right to assert additional defenses; and (3) a
request for attorneys’ fees in the prayer for relief. As to the first issue, Plaintiff notes the United
States Supreme Court has held punitive damages constitutional, though subject to constitutional
limits. As to the second issue, Plaintiff argues the law does not allow a party to reserve the right
to add defenses and defenses are waived if not timely asserted. As to the prayer for relief, Plaintiff
argues there are no claims or other grounds (such as a contractual provision) that might support an
award of attorneys’ fees to Experian. On reply, Plaintiff notes Experian did not respond to his
arguments relating to additional defenses and the prayer for attorneys’ fees. 4
Each of these arguments raises a legal challenge to an affirmative defense or prayer for
relief, rather than an argument of insufficient pleading. To the extent the arguments raise legal
challenges, they may be properly asserted as a Rule 12(c) motion. Further, as Plaintiff argues,
Experian’s failure to provide a substantive response to these arguments may be deemed a
concession the defenses and request should , at least, be limited.
Accordingly, the court limits (1) the Fourteenth Affirmative Defense to allow argument for
constitutional limits on rather than preclusion of punitive damages, (2) the Fifteenth Affirmative
Defense to reservation of a right to seek leave to amend under the applicable rules, and (3) the
claim for relief to seeking attorneys’ fees only if warranted based on extraordinary circumstances
such as under Fed. R. Civ. P. 11, not based on any fee-shifting contractual provision, claim, or
counterclaim.

4

Experian did not address these arguments in its opposition brief.
6

CONCLUSION
For reasons set forth above, Plaintiff’s motion is denied except to the extent the court has
limited the Fourteenth and Fifteenth Affirmative Defenses and prayer for relief as to attorneys’
fees.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 30, 2017

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