Klingforth et al v. Specialized Loan Servicing LLC

Filing 46

DECISION AND ORDER signed by Chief Judge William C Griesbach on 11/6/2017 GRANTING 41 Motion for Leave to File Sur-Reply, DENYING 28 Motion to Strike, and GRANTING 31 Motion for Partial Judgment on the Pleadings. Plaintiffs' claims alleged in Count 1 as well as Counts 2 and 3 are DISMISSED with prejudice. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SHAWN KLINGFORTH and
NATALIE KLINGFORTH,
Plaintiffs,
v.

Case No. 17-C-170

SPECIALIZED LOAN SERVICING, LLC,
Defendant.

DECISION AND ORDER

Plaintiffs Shawn and Natalie Klingforth initiated this action against Defendant Specialized
Loan Servicing, LLC for violations of the Fair Debt Collection Practices Act (FDCPA), the Fair
Credit Reporting Act (FCRA), and certain state laws. On August 29, 2017, Plaintiffs filed a motion
to strike a number of Defendant’s affirmative defenses. Defendant filed a motion for judgment on
the pleadings on September 13, 2017. On October 3, 2017, Plaintiffs filed a motion for leave to file
a sur-reply in opposition to Defendant’s motion. The motions are now fully briefed and ready for
disposition. For the following reasons, Plaintiffs’ motion to strike will be denied, and Defendants’
motion for partial judgment on the pleadings as well as Plaintiffs’ motion for leave to file a sur-reply
will be granted.
I. Motion to Strike
Plaintiffs have filed a motion to strike 11 affirmative defenses asserted by Defendant. They
argue that these defenses are not proper affirmative defenses or are simply conclusory statements
that fail to give Plaintiffs fair notice of the grounds upon which they are based. Rule 12(f) of the

Federal Rules of Civil Procedure provides that a court “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are
strongly disfavored and are rarely granted. Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400
(7th Cir. 1991).

Courts generally deny motions to strike where affirmative defenses and

counterclaims are adequately pled and provide the moving party with sufficient notice of the claim.
See id.
Plaintiffs have not explained why the parties and the court should undertake a searching
examination of certain affirmative defenses in Defendant’s pleading at this stage in the litigation,
when those defenses will very likely never have any impact in the case. As this court previously
noted in Illinois Tool Works Inc. v. ESAB Group, Inc.,
Plaintiffs often forget that they are in the driver’s seat: they have been marshaling
their facts and legal theories for months, while the defendant is given only a limited
period of time in which it must respond to the complaint’s allegations. Thus . . .
“many defendants commonly plead every conceivable defense to a given action
because, at the origin of a case, they might not have a firm grasp on the subject
matter and would rather be over-inclusive than risk waiver of a potentially valid
defense. By the time of summary judgment or trial, however, many of the defenses
originally pled simply fall away, even without a formal withdrawal being made.”
No. 16-C-201, 2016 WL 8224331, at *1 (E.D. Wis. Sept. 13, 2016) (quoting Marine Travelift Inc.
v. ASCOM SpA, No. 14-C-443, 2015 WL 461549, at *3 (E.D. Wis. Feb. 3, 2015)). Moreover,
Plaintiffs have not identified any actual prejudice they could expect to sustain if the court allows
these affirmative defenses to remain in Defendant’s pleading. Plaintiffs assert they have not yet
received fair notice of the grounds upon which each affirmative defense is based. But Plaintiffs have
received notice of the defenses asserted; they are just uncertain if all of Defendant’s affirmative
defenses are bona fide or if they are simple pro forma recitations in the answer to the amended

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complaint. The discovery deadline in this case is February 2, 2018, and Plaintiffs can rest assured
knowing that the parties have ample time to exchange discovery requests and responses to determine
whether each affirmative defense is in fact a bona fide defense. If Defendant’s affirmative defenses
do ultimately fail, Plaintiffs may file a dispositive motion, at which time the court will adjudicate the
dispute. The simple delay required for information gathering, however, is not reason enough to
require that the court embark on the largely academic exercise of editing a defendant’s pleadings.
Therefore, Plaintiffs’ motion to strike is denied.
II. Motion for Judgment on the Pleadings
Defendant filed a motion for partial judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. It seeks dismissal of “Counts 2 and 3 and most of Count 1” of
Plaintiffs’ First Amended Complaint. Def.’s Br. at 1, ECF No. 32. It is unclear, however, which
specific claims in Count 1 Defendant seeks judgment for. As best the court can tell, Defendant seeks
dismissal of Plaintiffs’ claims regarding 15 U.S.C. §§ 1692e(2) and 1692e(8) of the FDCPA. Rather
than respond to the merits of the motion, Plaintiffs filed a Notice of Withdrawal of Certain Claims,
voluntarily withdrawing their FDCPA claims as they relate to the statute of limitations (in Count 1),
their FCRA claims (Count 2), and their state law invasion of privacy claims (Count 3) pursuant to
Rule 41(a)(2) of the Federal Rules of Civil Procedure. ECF Nos. 38, 41-1. Plaintiffs assert that the
voluntarily withdrawal of these claims moots Defendant’s motion. ECF No. 39.
However, Rule 41(a) is not the appropriate method for dismissing some, but not all, of the
claims in a complaint. See Taylor v. Brown, 787 F.3d 851, 857–58 (7th Cir. 2015). Rule 41 allows
a plaintiff to “dismiss an action without a court order by filing . . . a notice of dismissal before the
opposing party files a motion for summary judgment.” Fed. R. Civ. P. 41(a)(1)(A)(i). The Seventh
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Circuit has recognized that Rule 41 “does not speak of dismissing one claim in a suit; it speaks of
dismissing ‘an action’—which is to say, the whole case.” Berthold Types Ltd. v. Adobe Sys. Inc.,
242 F.3d 772, 777 (7th Cir. 2001). Instead, a party must file a motion to amend her complaint in
accordance with Rule 15(a). Taylor, 787 F.3d at 858. Therefore, the court must reject Plaintiffs’
notice of withdrawal and turns to the merits of Defendant’s motion for partial judgment on the
pleadings.
Rule 12(c) of the Federal Rules of Civil Procedure permits a party to seek judgment on the
pleadings after the pleadings have been closed. Buchanan–Moore v. Cnty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009). A court must review a Rule 12(c) motion under the same standard
employed when reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim. Id. (citing
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007)). Here, Plaintiffs have failed to
substantively respond to Defendant’s motion and, as a result, they have waived their right to contest
it. See Lekas v. Briley, 405 F.3d 602, 614–15 (7th Cir. 2005) (holding that where plaintiff “did not
present legal arguments or cite relevant authority to substantiate [his] claim in responding to
defendants’ motion to dismiss,” his “claim has been waived”). Accordingly, Defendant’s motion for
judgment on the pleadings is granted. Plaintiffs’ claims alleged in Count 1 pursuant to 15 U.S.C.
§§ 1692e(2) and 1692e(8) as well as Counts 2 and 3 are dismissed with prejudice.
III. Conclusion
Based upon the foregoing, Plaintiffs’ motion to strike (ECF No. 28) is DENIED and
Plaintiffs’ motion for leave to file a sur-reply (ECF No. 41) is GRANTED. Defendant’s motion for
partial judgment on the pleadings (ECF No. 31) is GRANTED. Plaintiffs’ claims alleged in Count

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1 pursuant to 15 U.S.C. §§ 1692e(2) and 1692e(8) as well as Counts 2 and 3 are DISMISSED
WITH PREJUDICE.
Dated this 6th day of November, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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