United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
pending before the Court in this Fair Credit Reporting Act
("FCRA") case is Plaintiff Candace Alston's
Motion to Strike Defendant TransUnion's Affirmative
Defenses. ECF No. 32. No hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). For the reasons that follow,
Plaintiffs Motion will be granted.
FCRA. 15 U.S.C. § 1681 et seq., requires
consumer reporting agencies such as TransUnion to maintain
reasonable procedures aimed at limiting the distribution of
consumer reports for improper purposes. See 15 U.S.C
§ 1681e(a). In its Amended Complaint. Plaintiff alleges
that TransUnion violated "his sratute when it provided
Plaintiffs credit reports to Bank of America and Capital One.
despite the fact that neither was requesting them for a
permissible purpose under 15 U.S.C. § 1681b. ECF No. 24
¶¶ 25. 67, 113-116. On April 15.2016.
filed an Answer to Plaintiffs Amended Complaint listing
fifteen affirmative defenses. ECF No. 26 at 44 -
On May 2. 2016. Plaintiff filed a Motion to Strike all of
Defendant's affirmative defenses pursuant to Fed. R. Civ.
Pro. 12(f). ECF No. 32. Defendant responded on May 20. 2016,
withdrawing one of its affirmative defenses, and agreeing to
withdraw two others, "conditional upon confirmation that
Plaintiff is not seeking and will net seek any state law
claims as such claims are pre-empted by the FCRA." ECF
No. 39 at 7.
requested that Plaintiffs Motion to Strike be denied as to
its remaining twelve affirmative defenses, or in the
alternative, that it be given leave to amend them. ECF No.
Rule of Civil Procedure 12(f) permits courts to "strike
from a pleading an insufficient defense." Fed.R.Civ.P.
12(f). Such motions are "generally viewed with disfavor
'because striking a portion of a pleading is a drastic
remedy and.. .is often sought by the movant simply as a
dilatory tactic.'" Waste Mgmt. Holdings. Inc. v.
Gilmore, 252 F.3d 316. 347 (4th Cir. 2001) (quoting 5A
A. Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1380, 647 (2d ed.1990)).
Therefore, a court should review such motions "in a
light most favorable to the pleader" and, if granted,
give the Defendant leave to amend. Ulyssix Techs., Inc.
v. Orbital Network Eng'g, Inc., No. CIV.A.
ELH-10-02091, 2011 WL 631145. at * 14 (D. Md. Feb. 11, 2011)
(internal citation omitted). In addition, courts
"generally require the moving party to establish that
the materials to be struck prejudice the moving party in some
way." Asher & Simons. P.A. v. j2 Glob.
Canada. Inc., 965 F.Supp.2d 701. 705 (D. Md.) (citation
omitted), on reconsideration in pari, 977
F.Supp.2d 544 (D. Md. 2013).
has moved to strike the twelve remaining affirmative defenses
asserted by TransUnion, arguing that they fail to satisfy the
pleading requirements set forth for complaints in two recent
Supreme Court cases, Ashcroft v. Iqbal, 556 U.S. 662
(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007). Both Iqbal and Twombfy
addressed the level of factual specificity a plaintiff must
include in their complaint in order to meet Fed. R. Civ. Pro.
8(a)(2)* s requirement that their pleading contain "a
short and plain statement of the claim showing that the
pleader is entitled to relief." See Fed. R.
Civ. Pro. 8(a)(2). In Twombly, the Supreme Court
held that the factual allegations in a complaint must be more
than '"labels and conclusions;" rather, they
"must be enough to raise a right to relief above the
speculative level...." Twombly. 550 U.S. at 555
(internal citation omitted). Two years later in
Iqbal. the Court provided further guidance on this
standard, ruling that "[a] claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.""
Iqbal. 556 U.S. at 678. The Court held that
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Iqbal, 556 U.S. at 678-79.
claims that she is prejudiced by the conclusory nature of
Defendant's affirmative defenses, as she will need to
"waste discovery resources to uncover the factual basis
of Defendant's affirmative defenses."" ECF No.
32-1 at 4. In response. TransUnion submits that the enhanced
pleading standards for complaints developed in Iqbal
and Twombly do not apply to affirmative defenses.
ECF No. 39 at 3-5. TransUnion further argues that, regardless
of the pleading standard the Court adopts, their affirmative
defenses should not he stricken because they provide
Plaintiff with sufficient notice of their defenses.
Id. at 5-14.
date, neither the Supreme Court nor the Fourth Circuit has
ruled on whether Iqbal and Twombly applies
to affirmative defenses. District Court judges in this
district and others have reached differing conclusions.
Compare Lockheed Martin Corp. v. United Slates, 973
F.Supp.2d 591, 595 (D. Md. 2013) (Williams. J.) ("the
Court declines to hold that Twombly and
Iqbal apply to affirmative defenses/") with
Aguilar v. City Lights of China Rest., Inc., No. CIV.A.
DKC 11-2416, 2011 WL 5118325, at *4 (D. Md. Oct. 24, 2011)
(Chasanow, J.) ("Therefore. although Twombly
and Iqbal specifically addressed the sufficiency of
a complaint under Rule 8(a). the Court likely did not intend
to confine its holdings to complaints alone.")
that have imposed the heightened pleading standards of
Iqbal and Twombly on affirmative defenses often
rely on twin principles of fairness and litigation
efficiency, reasoning that:
...it neither makes sense nor is it fair to require a
plaintiff to provide the defendant with enough notice that
there is a plausible, factual basis for her claim under one
pleading standard and then permit:he defendant under another
pleading standard ...