United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on plaintiff's motion to strike affirmative defenses, filed pursuant to Federal Rule of Civil Procedure 12(f) (DE 47). Defendant responded, and the deadline for plaintiff's reply has expired. In this posture, the matter is ripe for review. For the reasons that follow, the court denies the motion.
The court refers to and incorporates the case history provided in previous orders. Pertinent to the instant motion, pro se plaintiff alleges violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq.; the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1601 et seq.; the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq.; and the North Carolina Fair Debt Collections Practices Act ("NCFDCPA"), N.C. Gen. Stat. § 58-70 et seq. The claims relate to a series of events occurring from September to November of 2012, in which defendant allegedly acquired access to plaintiff's consumer file through a credit reporting agency, and subsequently made phone calls to plaintiff's telephone number and sent mail to plaintiff's address to collect on an alleged debt. Plaintiff originally brought suit against defendant and another entity, Global International.
On March 28, 2014, the clerk of court granted plaintiff's motion for entry of default as to defendant. However, on July 14, 2014, the court issued order addressing a number of motions in the case, in the process granting defendant's motion to set aside default and denying plaintiff's motion for default judgement. The court held in abeyance a motion to dismiss filed by Global International, pending defendant's response to the complaint.
Defendant filed answer on August 4, 2014, admitting that its agent placed telephone calls on certain dates but otherwise largely denying allegations. Defendant also raised twenty-two (22) affirmative defenses. One week later, the court issued a text order granting the motion to dismiss, where on the face of the pleadings it appeared uncontested that Global International is an assumed name of defendant. Plaintiff filed the instant motion to strike on August 26, 2014.
A. Standard of Review
A district court may, on motion of a party or on its own initiative, strike from a pleading an "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). "A defense is insufficient if it is clearly invalid as a matter of law." Spell v. McDaniel , 591 F.Supp. 1090, 1112 (E.D. N.C. 1984). "Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic." Waste Mgmt. Holdings, Inc. v. Gilmore , 252 F.3d 316, 347 (4th Cir. 2001) (internal quotation omitted). Therefore, motions to strike are strictly considered, see Godfredson v. JBC Legal Group, P.C. , 387 F.Supp.2d 543, 547 (E.D. N.C. 2005), and the court is required to "view the pleading under attack in a light most favorable to the pleader." Racick v. Dominion Law Assocs. , 270 F.R.D. 228, 232 (E.D. N.C. 2010). "Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted." Waste Mgmt. , 252 F.3d at 347 (internal quotation omitted).
Plaintiff requests that the court strike defendant's First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth and Eighteenth Defenses. The motion asserts that defendant's answer fails to plead sufficient information to constitute fair notice of these affirmative defenses, arguing that the pleading standard set forth by the Supreme Court in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) and Ashcroft v. Iqbal , 556 U.S. 662 (2009) should equally apply to affirmative defenses. In addition, plaintiff asserts certain grounds specific to several of these defenses in support of its motion to strike.
1. Applicability of Twombly and Iqbal to Affirmative Defenses
The Fourth Circuit has not addressed the issue of whether the Twombly/Iqbal standard applies to affirmative defenses. Earlier this year, however, this court rejected arguments nearly-identical to plaintiff's argument. Coach, Inc. v. Sun Super Market, Inc., No. 5:13-CV-679, 2014 WL 545948 (E.D. N.C. Feb. 10, 2014); Aguilar-Gamas v. Scott Farms, Inc., No. 5:13-CV-447-FL, U.S. Dist. LEXIS 20928 (E.D. N.C. Jan. 6, 2014). The court adheres to the reasoning set forth earlier, that this standard does not apply in this instance.
Federal Rules of Civil Procedure 8(b) and 8(c) govern defenses and affirmative defenses, and require only that a party "state in short and plain terms its defenses to each claim asserted against it, " Fed.R.Civ.P. 8(b)(1)(A) and "affirmatively state any avoidance or affirmative defense, " Fed.R.Civ.P. 8(c)(1). This language differs markedly from the language of Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief. " (emphasis added); see also E.E.O.C. v. Joe Ryan Enters., Inc. , 281 F.R.D. 660, 663 (M.D. Ala. 2012) ("If the drafters of Rule 8 intended for defendants to plead affirmative defenses with the factual specificity required of complaints, they would have included the same language requiring a showing' of entitlement to relief' in the subsections governing answers and affirmative defenses.") (brackets omitted). The distinction sensibly reflects the differing situations of plaintiffs and defendants, in that plaintiffs have more time to develop factual support for their contentions, and defendants are not responsible for "unlocking the doors of discovery" ...