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Hinkle v. Experian Information Solutions, Inc.

United States District Court, W.D. North Carolina, Asheville Division

March 27, 2018

TERI LYNN HINKLE, Plaintiff,
v.
EXPERIAN INFORMATIONS SOLUTIONS, INC., et al., Defendants.

          ORDER

          Dennis L. Howell, United States Magistrate Judge

         Pending 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.

         Background.

         In the 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].

         Legal Standards.

         Under 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.)).

         A 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).

         Discussion.

         The Court will assess each of Plaintiff's arguments in turn.

         Failure 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).[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.

         Failure to mitigate damages. Plaintiff's claims are brought pursuant to 15');">15 U.S.C. § 1681n. Section 1681n states in part:

(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-
(1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not ...

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