United States District Court, W.D. Louisiana, Shreveport Division
JOSE D. IRAHETA
EQUIFAX INFORMATION SERVICES, LLC, ET AL.
ELIZABETH ERNY FOOTE, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs motion to strike defenses raised by
Defendants Equifax Information Services, LLC
("Equifax") and Trans Union, LLC ("Trans
Union"). [Record Document 124]. For the reasons
discussed below, the motion is GRANTED IN PART,
DENIED IN PART, and STAYED IN PART.
The motion is STAYED with respect to Count V
of Plaintiffs third amended complaint,
GRANTED with respect to Equifax's fifth
defense, and DENIED in all other respects.
Equifax is granted until August 6, 2018 to amend its answer
so as to more specifically articulate its fifth defense.
Jose Iraheta ("Iraheta") raises claims under the
Fair Credit Reporting Act ("FCRA") and state tort
law against the three credit reporting agencies: Trans Union,
Equifax, and Experian Information Solutions, Inc. [Record
Document 109]. The already complex procedural history of this
matter was discussed in this Court's ruling on
Iraheta's motion for default judgment, [Record Document
138 at 1-4], and so the Court will summarize only the
relevant portions here. After Iraheta filed his third amended
complaint, Trans Union and Equifax answered, denying most of
Iraheta's allegations and asserting a number of defenses.
[Record Documents 114 and 115]. Iraheta moved to strike those
defenses. [Record Document 124]. Equifax and Trans Union
oppose his motion. [Record Document 131].
of Iraheta's complaint involves various data breaches at
the credit unions, including the May 2017 Equifax data breach
that is now the subject of multidistrict litigation in the
Northern District of Georgia. [Record Documents 109 at 20 and
131-1]. The Judicial Panel on Multidistrict Litigation
conditionally transferred this matter to the MDL and then
remanded Iraheta's remaining claims: Count III (FCRA),
Count IV (Defamation), and Count VI (Negligence). [Record
Document 131-1]. In light of this conditional transfer, this
ruling applies only to the claims in Counts III, IV, and VI
of Iraheta's third amended complaint.
Law and Analysis
may "strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter." Fed R. Civ. P. 12(f). Because motions to strike
are "somewhat dilatory and often harassing," 5C
Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1381 (3d ed. 2002),
motions to strike are disfavored, Augustus v. Bd. of Pub.
Instruction, 306 F.2d 862, 868 (5th Cir. 1962) (quoting
Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir. 1953)). A motion to
strike is appropriate only if a part of a pleading has
"no possible relation to the controversy."
Id. (quoting Brown & Williamson Tobacco
Corp., 201 F.2d at 822). To have a defense
successfully stricken, a plaintiff must show (1) that the
defense is legally insufficient, impertinent, or redundant;
and (2) prejudice resulting from its continued presence.
See FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex.
1993) (citing Augustus, 306 F.2d at 868); Wright
& Miller, supra § 1380.
aftermath of the Supreme Court's reinterpretation of
pleading standards in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), lower courts have split over
the level of factual detail required of affirmative defenses,
see Wright & Miller, supra § 1274.
In support of his motion, Iraheta cites cases from district
courts in the Ninth Circuit that apply the heightened
Twombly-Iqbal standard of facial plausibility to
affirmative defenses. See Hernandez v. Dutch Goose,
Inc., 2013 WL 5781476, at *4 (N.D. Cal. Oct. 25, 2013);
Miller v. Ghirardelli Chocolate Co., No. C 12-04936
LB, 2013 WL 3153388, at *3 (N.D. Cal. June 19, 2013). The
question is thus whether this Court should do likewise.
to Twombly and Iqbal, the Fifth Circuit
only required that a defense "give the plaintiff
'fair notice' of the defense that is being advanced
... so that the plaintiff [i]s not a victim of unfair
surprise." Woodfield v. Bowman, 193 F.3d 354,
362 (5th Cir. 1999) (quoting Home Ins. Co. v.
Matthews, 998 F.2d 305, 309 (5th Cir. 1993)). There is
thus a "tension between the Woodfield
court's reference to the more relaxed pleading standards
that existed at the time that decision came down and the
heightened pleading standards now in effect." Vargas
v. HWC Gen. Maint., LLC, No. CIV.A. H-11-875, 2012 WL
948892, at *2 (S.D. Tex. Mar. 20, 2012). The Fifth Circuit
has not addressed this issue, and courts within the circuit
are divided. Compare Id. at *2 (holding that the
Twombly-Iqbal standard applies to affirmative
defenses) with Bledsoe v. City of Shreveport, No. CV
15-2484, 2016 WL 8710974, at *2 (W.D. La. June 24, 2016)
(applying the Woodfield standard) and Floridia
v. DLT3 Girls, Inc., No. 4:11-CV-3624, 2012 WL 1565533,
at *2 (S.D. Tex. May 2, 2012) (same).
the Twombly-Iqbal standard has displaced
the"fair notice" requirement in Woodfield,
the new standard has not altered the underlying purpose of
any pleading requirement-avoiding "unfair
surprise." Woodfield, 193 F.3d at 362 (quoting
Home Ins. Co., 998 F.2d at 309). For this reason,
courts in the Fifth Circuit have emphasized that a defense
should be stricken only when a plaintiff shows prejudice.
Bledsoe, 2016 WL 8710974, at *3; Niblo, 821
F.Supp. at 449 (citing Augustus, 306 F.2d at 868);
see also Tayne Christensen Co. v. Bro-Tech Corp.,
No. 09-CV-2381-JWL-GLR, 2011 WL 3847076, at *6 (D. Kan. Aug.
29, 2011) ("[A]bsent prejudice to an opposing party,
courts should not strike a defense."). In light of the
stress the Fifth Circuit has placed on fair notice and
avoiding surprise, the Court holds that even if the
Twombly-Iqbal standard applies to affirmative
defenses, a motion to strike is still properly denied unless
the plaintiff shows prejudice from the factually bare