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Cohen v. SunTrust Mortgage, Inc.

United States District Court, D. South Carolina, Columbia Division

March 30, 2017

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

          OPINION AND ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS AS TO AFFIRMATIVE DEFENSES ECF NO. 34

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         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, 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 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 Twombly-Iqbal 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 (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 ...


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