UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sandra Brossart, Civil No. 11-786 (DWF/JJK)
v. OPINION AND ORDER
This matter is before the Court on a Motion to Strike Affirmative Defenses (Doc.
No. 5) brought by Plaintiff Sandra Brossart. For the reasons set forth below, Plaintiff’s
motion is granted in part and denied in part.
In her Complaint, Plaintiff asserts a single count under the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681, et seq., based on the allegation that Defendant
DIRECTTV requested and accessed a copy of Plaintiff’s credit report without a
permissible purpose. Defendant answered Plaintiff’s Complaint and asserted seventeen
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separate affirmative defenses.1 Plaintiff now moves to strike all asserted affirmative
defenses as insufficient, redundant, immaterial, and/or impertinent.
Plaintiff moves to dismiss all of Defendant’s affirmative defenses pursuant to Rule
12(f) of the Federal Rules of Civil Procedure. Rule 12(f) provides that the Court may, on
its own or on motion made by a party, “strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. R. 12(f). A
district court enjoys “liberal discretion” under this rule. Stanbury Law Firm, P.A. v.
Internal Revenue Serv., 221 F.3d 1059, 1063 (8th Cir. 2000). However, striking a party’s
pleadings “is an extreme measure,” and motions to strike under Rule 12(f) “are viewed
with disfavor and infrequently granted.” Id. “A motion to strike a defense will be denied
if the defense is sufficient as a matter of law or if it fairly presents a question of law or
fact which the court ought to hear.” Lunsford v. United States, 570 F.2d 221, 229 (8th
Cir. 1977) (quoting 2A Moore’s Federal Practice ¶ 12.21 at 2437 (2d ed. 1975)).
Plaintiff asserts that the pleading standard set forth in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) should also apply to
affirmative defenses and argues that several of the affirmative defenses fail to allege
sufficient facts to state a claim upon which relief can be granted. Plaintiff acknowledges
1 Defendant asserts the following affirmative defenses: Failure to State a Claim,
Estoppel, Laches, Unclean Hands, Failure to Mitigate, Preemption, Waiver, Contribution,
Lack of Malice, Statute of Limitations, Fault of Others, Intervening Acts, Several
Liability, Choice of Law, Punitive Damages, Privilege, and Innocent Mistake/Bona Fide
Error. (Doc. No. 4.)
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that no circuit court has yet ruled that Twombly and Iqbal apply to affirmative defenses,
but asserts that there is a split in this District concerning the application of the plausibility
standard to Rule 12(f). Compare Schlief v. Nu-Source, Inc., Civil No. 10-4477, 2011 WL
1560672 (D. Minn. Apr. 25, 2011) with Ahle v. Veracity Research Co., No. 09-cv-0042,
2010 WL 3463513 (D. Minn. Aug. 25, 2010). Plaintiff asserts that all seventeen
affirmative defenses should be stricken because they are inapplicable to the case or are
boilerplate defenses for which Defendant has not provided a factual basis. Plaintiff
further asserts that the affirmative defenses impede her ability to tailor discovery and
motion practice in this case.
In addition, Plaintiff argues the following: (1) Defendant’s sixth affirmative
defense (Preemption) fails because there are no state-law claims and Defendant fails to
provide any support for the notion that Plaintiff’s federal claim is preempted by some
other federal statute; (2) Defendant’s tenth affirmative defense (Statute of Limitations)
fails because Plaintiff’s pleading occurred within the applicable statute; (3) Defendant’s
fourteenth affirmative defense (Choice of Law) fails because Plaintiff’s cause of action is
based on the alleged violation of a federal statute, and therefore federal law governs;
(4) Defendant’s fifteenth affirmative defense (Punitive Damages) fails because Plaintiff’s
cause of action is governed by the FCRA, under which punitive damages are available for
willful conduct; and (5) Defendant’s seventeenth affirmative defense (Innocent Mistake/
Bona Fide Error) fails because there is no such defense available in FCRA cases.
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Defendant argues that each of its affirmative defenses is factually possible and
therefore Plaintiff’s motion should be denied in its entirety. In the alternative, Defendant
seeks leave to file an amended answer should the Court grant Plaintiff’s motion to strike.
The Court concludes, as it did previously in Schlief, that the pleading standard set
forth in Twombly and Iqbal does not apply to affirmative defenses. As explained in
Schlief, the language in Fed. R. Civ. P. 8(a) that provided the basis for those Supreme
Court decisions does not appear in Rule 8(b) or 8(c), which govern defenses. Schlief,
2011 WL 1560672, at *9 (citing Wells Fargo & Co. v. United States, 09-CV-2764, 2010
WL 4530158, at *2 (D. Minn. Oct. 27, 2010)). In addition, the Court notes again that a
defendant typically has only 21 days in which to serve an answer to a complaint and is
therefore in a much different position from that of a plaintiff. See id. Thus, application
of Twombly and Iqbal to affirmative defenses would significantly change federal civil
practice and would likely increase the burden on the federal courts. See id.
The Court therefore denies Plaintiff’s motion to strike as it applies to Defendant’s
first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth,
and sixteenth affirmative defenses. In support of her motion, Plaintiff argues that these
affirmative defenses are boilerplate and lack factual support. Because Twombly and
Iqbal do not apply to affirmative defenses, the determination of the factual sufficiency of
these defenses is premature.
The Court concludes, however, that Defendant’s sixth (Preemption), fourteenth
(Choice of Law), fifteenth (Punitive Damages), and seventeenth (Innocent Mistake/Bona
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Fide Error) affirmative defenses are either insufficient as a matter of law or immaterial
and therefore grants Plaintiff’s motion as to these defenses without prejudice.2
Based on the files, records, and proceedings herein, and for the reasons set forth
above, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion to Strike Affirmative Defenses (Doc. No. ) is
GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff’s motion to strike Defendant’s first, second, third,
fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and
sixteenth affirmative defenses is DENIED;
b. Plaintiff’s motion to strike Defendant’s sixth, fourteenth,
fifteenth, and seventeenth affirmative defenses is GRANTED;
c. Defendant’s sixth, fourteenth, fifteenth, and seventeenth
affirmative defenses are DISMISSED WITHOUT PREJUDICE.
Dated: November 4 2011 s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
2 In reaching its decision, the Court is not commenting on the ultimate strength or
viability of Defendant’s numerous affirmative defenses. The Court acknowledges that it
may need to address the viability of Defendant’s remaining affirmative defenses at
summary judgment or as an evidentiary or pretrial issue.
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