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Bruner v. Midland Funding LLC

United States District Court, W.D. Oklahoma

January 25, 2018

DANNIELLE BRUNER, Plaintiff,
v.
MIDLAND FUNDING, LLC, et al., Defendants.

          ORDER

          TIMOTHY D.DEGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Dannielle Bruner's Motion to Strike Pursuant to Fed.R.Civ.P. 12(f) [Doc. No. 73] and Brief in Support [Doc. No. 74]. Defendant Encore Capital Group, Inc., has filed its Response [Doc. No. 75]. The matter is fully briefed and at issue.

         BACKGROUND

         Plaintiff contends the defendant companies engage in unlawful credit reporting and debt collection practices. Motion to Strike, 1. She moves to strike Defendant Encore's Affirmative Defenses Nos. 1, 2, 3, 4, 5, and 6 as well as Defendant Encore's request for relief in the form of costs and attorney fees. Plaintiff asserts these defenses and this request for relief are legally and factually insufficient pursuant to Rule 12(f), Federal Rules of Civil Procedure. The Affirmative Defenses at issue state:

1. Plaintiff has failed to state a claim against Encore upon which relief may be granted.
2. The Court does not have personal jurisdiction over Encore, as Encore does not transact business in Oklahoma, is not incorporated in Oklahoma, and its principal place of business is not in Oklahoma.
3. Encore at all times followed the requirements of the FCRA and established and followed reasonable procedures to avoid violations of the FCRA.
4. Any alleged damages of Plaintiff, which Encore continues to deny, is the result of the acts or omissions of Plaintiff or others over whom Encore has no control and for whom it has no responsibility.
5. Plaintiff failed to mitigate her alleged damages.
6. Plaintiff's claims are barred by the statute of limitations.

         Defendant Encore Group's Answer to Amended Complaint [Doc. No. 70], 23.

         Plaintiff argues that the aforementioned defenses and request for relief are factually insufficient to provide notice and will unduly prejudice Plaintiff. Plaintiff also asserts that the defenses fail to meet the standards set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 663 (2009), [1] and that Encore has made admissions which vitiate Affirmative Defense No. 2. Defendant Encore, in response, states the challenged defenses and request for relief provide Plaintiff with adequate notice, do not prejudice Plaintiff, and that Twombly and Iqbal standards do not apply.[2]

         STANDARD OF DECISION

         The Court “may strike from a pleading an insufficient defense, or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). However, such relief is a severe remedy and generally disfavored. United States v. Hardage, 116 F.R.D. 460, 463 (W.D. Okla. 1987); see also, Sender v. Mann, 423 F.Supp.2d 1155, 1163 (D. Colo. 2006). In fact, such motions, in addition to being disfavored, are often “considered purely cosmetic or ‘time wasters.'” Lane v. Page, 272 F.R.D. 581, 587 (D.N.M. 2011) (quoting 5C C. Wright & A. Miller, Federal Practice & Procedure § 1382 (3d. ed.2004)); see also, Tavasci v. Cambron, CIV 16-0461 JB/LF, 2016 WL 6405896, at *7 (D.N.M. Oct. ...


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