United States District Court, D. South Carolina, Columbia Division
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
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.
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.
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.
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).
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)). 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
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)
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
of Twombly-Iqbal pleading standard.
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
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.”).
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