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Cecilia E. Gonzalez v. Heritage Pacific Financial

August 8, 2012

CECILIA E. GONZALEZ, PLAINTIFF,
v.
HERITAGE PACIFIC FINANCIAL, LLC; CHRISTOPHER DAVID GANTER; STEPHEN THOMAS REHEUSER; BRAD A. MOKRI; JENNIFER NICHOLE HUPE; BENJAMIN ALAN GANTER; AND DOES 1 THROUGH 20, DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O

ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES [36]

I.INTRODUCTION

Pending before the Court is Plaintiff Cecilia Gonzalez's Motion to Strike Defendants' affirmative defenses under Federal Rule of Civil Procedure 12(f). (ECF No. 36.) Having carefully considered the papers filed in support of and in opposition to this motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.

II.FACTUAL BACKGROUND

On June 11, 2011, Cecilia Gonzalez filed a First Amended Complaint alleging that Defendants-by initiating a frivolous lawsuit to collect on a defaulted second-mortgage loan-violated the Fair Debt Collection Practices Act, Rosenthal Fair Debt Collection Practices Act, and California Business and Professions Code section 17200. (ECF No. 5.) On March 22, 2012, Defendants filed an answer asserting the following twenty affirmative defenses: (1) fails to state facts; (2) statute of limitations; (3) estoppel; (4) no damage; (5) failure to mitigate; (6) third persons' comparative fault/negligence; (7) proximate cause; (8) excuse; (9) uncertain; (10) consent; (11) laches; (12) unclean hands; (13) waiver; (14) failure to perform; (15) failure to join indispensable party; (16) defendants performed all conditions; (17) failure to exercise administrative remedies; (18) fraud; (19) failure to bring counterclaim; and (20) additional affirmative defenses. (ECF No. 34.) This motion seeks to strike all of these affirmative defenses.

III.LEGAL STANDARD

Under to Federal Rule of Civil Procedure 12(f), a court may strike an affirmative defense if it is insufficient or is "redundant, immaterial, impertinent, or scandalous." Fed. R. Civ. P. 12(f). An affirmative defense must give the plaintiff fair notice of the defense. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979).

Motions to strike are disfavored and are "generally not granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." LeDuc v. Ky. Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). But a court should strike an affirmative defense when there are no substantial questions of law or fact and when the "insufficiency of the defense is clearly apparent on the face of the pleading." Nat'l Acceptance Co. of Am. v. Regal Prods., Inc., 155 F.R.D. 631, 634 (E.D. Wis. 1994). If a defense is stricken, the court should freely give leave to amend, so long as there is no prejudice to the opposing party. Fed. R. Civ. P. 15(a)(2); Wyshak, 607 F.2d at 826.

IV.DISCUSSION

Gonzalez asks the Court to apply the heightened "plausibility" pleading standard set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), and contends that Defendants' affirmative defenses fail to satisfy Federal Rule of Civil Procedure 8. (Mot. 5, 8.) Neither the Supreme Court nor any of the circuit courts has addressed this issue, and there is a division among federal district courts in this circuit.*fn1 The majority of district courts have held that the Twombly/Iqbal pleading standard applies equally to the pleading of affirmative defenses as it does to the pleading of claims for relief in a complaint.*fn2 The reason to do so is a valid one-by applying the heightened pleading standard to affirmative defenses, defendants must state a "valid factual basis for pleading an affirmative defense and not adding it to the case simply upon some conjecture that it may somehow apply." Perez, 2012 U.S. Dist. LEXIS 41080, at *22 (quoting Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 650 (D. Kan. 2009).

Twombly and Iqbal redefined Rule 8's fair-notice pleading requirement to demand that a pleading set forth "enough facts" to make a claim "plausible on its face" and contain "more than labels and conclusions." Twombly, 550 U.S. at 555, 570. Rule 8 requires more than unadorned accusations; legal conclusions must be supported by factual allegations. Iqbal, 556 U.S. at 678--79.

Given that Rule 8 governs both the pleading of claims and the pleading of affirmative defenses, the Court sees no reason why the Twombly/Iqbal pleading standard should not apply to affirmative defenses. Barnes, 718 F. Supp. 2d at 1172. Moreover, Rule 8's requirements regarding the pleading of defenses parallel the pleading of claims. Perez, 2012 U.S. Dist. LEXIS 41080, at *21; see Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999) ("An affirmative defense is subject to the same pleadings standard as is the complaint.").

The Court therefore concludes that the Twombly/Iqbal heightened pleading standard applies ...


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