United States District Court, W.D. North Carolina, Asheville Division
L. Howell, United States Magistrate Judge
before the Court is Plaintiff's Motion to Strike [# 15');">15].
On January 8, 2018, pro se Plaintiff filed her Complaint [#
1]. On February 12, 2018, Defendant Experian Information
Solutions, Inc., filed its Answer [# 5]. Defendant's
Answer raised five affirmative defenses [# 5]. On February
20, 2018, Plaintiff filed her Motion to Strike [# 15');">15]. On
March 6, 2018, Defendant filed its Response to
Plaintiff's Motion to Strike [# 20]. Plaintiff asks the
Court to strike Defendant's affirmative defenses because
they are insufficient “as they fail to state legal or
factual defenses” [# 15');">15, p. 1]. For the reasons below,
the Court will deny the motion.
Complaint, Plaintiff alleges three violations of the Fair
Credit Reporting Act [# 1, pp. 6-7]. Defendant's Answer
contains the following affirmative defenses: (1) Plaintiff
failed to state a claim for which relief can be granted; (2)
Plaintiff failed to mitigate her alleged damages; (3)
comparative and contributory negligence; (4) estoppel; (5)
the doctrine of unclean hands [# 5, pp. 10-11].
Fed.R.Civ.p. 12(f), the “Court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter” either
sua sponte or upon motion. Simaan, Inc. v. BP Products
North American, Inc., 395 F.Supp.2d 271, 278 (M.D. N.C.
2005). In a motion to strike, the burden is high and rests
with the movant. Clark v. Milam, 15');">152 F.R.D. 66');">15');">152 F.R.D. 66, 70
(S.D. W.Va. 1993). In evaluating a motion to strike defenses,
a Court must determine whether the challenged allegations are
“so unrelated to plaintiffs claims as to be unworthy of
any consideration as a defense and that their presence in the
pleading throughout the proceeding will be prejudicial to the
moving party.” Francisco v. Verizon South,
Inc., No. 3:09-CV-737, 2010 WL 299015');">159, at *5 (E.D. Va.
July 29, 2010) (quoting 5C Fed. Prac. & Proc. Civ. §
1380 (3d. ed.)).
defendant is only required to “state in short and plain
terms its defenses to each claim asserted against it.”
Fed.R.Civ.P. 8(b). “The Federal Rules of Civil
Procedure only require that an affirmative defense be
definite enough to put the plaintiff on fair notice of its
nature.” Ferguson v. Guyan Machinery Co., No.
93-2593, 1995 WL 20793, at *5 (Jan. 20, 1995) (citing
Fed.R.Civ.P. 8(c)); see also Clem v. Corbeau, 98
Fed. App'x. 197, 203 (4th Cir. 2004).
Court will assess each of Plaintiff's arguments in turn.
to state a claim for which relief can be granted.
Understandably, Plaintiff confuses the practice of preserving
this defense and an actual motion to dismiss. See
LCvR 7.1(c)(1).Defendant raised this defense in its Answer
to preserve the issue and put Plaintiff on notice that
Defendant intends to file a motion to dismiss at a later
date. Thus, Plaintiff is not deprived of Due Process.
Further, the practice is neither unfair nor prejudicial. The
Court will not strike Defendant's first defense.
to mitigate damages. Plaintiff's claims are brought
pursuant to 15');">15 U.S.C. § 1681n. Section 1681n states in
(a) In general
Any person who willfully fails to comply with any requirement
imposed under this subchapter with respect to any consumer is
liable to that consumer in an amount equal to the sum of-
any actual damages sustained by
the consumer as a result of the failure or
damages of not less than $100 and not ...