United States District Court, W.D. Washington, Tacoma
B. LEIGHTON UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff Anderson's Motion
to Strike Defendants' Encore et al.'s affirmative
defense under Fed.R.Civ.P. 21(f). [Dkt. # 8]. Anderson sued
under the Fair Debt Collection Procedures Act, claiming
Encore failed to acknowledge that he disputed a debt it was
seeking to collect.
Answer included the bona fide error affirmative defense under
the FDCPA. Anderson argues that the affirmative defense is
subject to the same plausibility pleading standard applicable
to a plaintiff's claims, and argues that simply reciting
the elements of the defense is not enough to survive what is
effectively a Rule 12(b)(6) challenge to the bona fide error
argues, persuasively, that the familiar
Iqbal/Twombly plausibility standard does not apply
to affirmative defenses:
Moreover, the familiar Twombly and Iqbal
pleading standards do not apply to affirmative defenses.
“Factually speaking, courts in this district have
generally interpreted ‘fair notice' to require
something far less than the specificity required of a
complaint under Twombly and Iqbal.”
United States v. Ctr. for Diagnostic Imaging, Inc.,
2011 WL 6300174, at *2 (W.D. Wash. Dec. 16, 2011); see
also Trustmark Ins. Co. v. C & K Mkt., Inc., 2011 WL
587574, at *1 (D. Or. Feb. 10, 2011). A motion to strike an
affirmative defense is only granted where there are no
questions of fact, any questions of law are clear and not in
dispute, and under no set of circumstances could the defense
succeed. Silver Valley Partners, LLC v. De Motte,
2006 WL 538208, at *1 (W.D. Wash. Mar. 3, 2006) (Leighton).
Dkt. # 14 at 2.
reiterates that the bona fide error defense requires the
defendant to affirmatively plead and to prove two elements:
(1) that there was no intent to violate the statute and (2)
that the debt collector maintains procedures reasonably
adapted to avoid the error. See 15 U.S.C. §
1692(k). He argues that Encore's affirmative defense
“had to have been plead with particularity, ”
supported by facts. Because it did not, he claims, the
affirmative defense should be stricken.
cases he cites (but does not discuss or quote) do not so
hold. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1276
(11th Cir. 2011), for example, reversed a summary judgment;
it did not address the pleading specificity required to put
the defense in play. Wyshak v. City Nat. Bank, 607
F.2d 824, 826 (9th Cir. 1979) involved amending an answer to
assert a limitations period affirmative defense but did not
hold that Iqbal (or Rule 9) applied to that defense.
Qarbon.com Inc. v. eHelp Corp., 315 F.Supp.2d 1046,
1049 (N.D. Cal. 2004) struck several boilerplate affirmative
defenses in a patent case, but permitted the defendant to
amend his answer to articulate their bases. It is not clear
how plaintiff believes Fed. Dep. Ins. Corp. v. Main
Hurdman, 655 F.Supp. 259, 262 (E.D. Cal. 1987) applies,
but it does not hold that a bona fide error defense must be
plead with the factual plausibility required under
Iqbal, or the particularity sometimes required under
Rule 9. None of the other authorities support Anderson's
claim that in the absence of factual support for the
affirmative defense, it must be stricken without leave to
seems clear that the way to determine what procedures Encore
believes it has in place to avoid mistakes is to conduct
discovery into those procedures, or to obtain an admission
that none exist.
even if the familiar Iqbal/Twombly plausibility
standard did apply to the bona fide error
affirmative defense, the cure for an insufficient pleading is
amendment, not dismissal. On a 12(b)(6) motion, “a
district court should grant leave to amend even if no request
to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.” Cook, Perkiss & Liehe v. N. Cal.
Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).
to amend a complaint under Fed.R.Civ.P. 15(a) “shall be
freely given when justice so requires.” Carvalho v.
Equifax Info. Services, LLC, 629 F.3d 876, 892 (9th Cir.
2010) (citing Forman v. Davis, 371 U.S. 178, 182
(1962)). This policy is “to be applied with extreme
liberality.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations
omitted). In determining whether to grant leave under Rule
15, courts consider five factors: “bad faith, undue
delay, prejudice to the opposing party, futility of
amendment, and whether the plaintiff has previously amended
the complaint.” United States v. Corinthian
Colleges, 655 F.3d 984, 995 (9th Cir. 2011)
(emphasis added). Among these factors, prejudice to the
opposing party carries the greatest weight. Eminence
Capital, 316 F.3d at 1052.
claims that this motion was Encore's only chance to
correct the record, and that its failure to do so has
prejudiced him (and the Court). He claims the affirmative
defense should be stricken without leave to amend. But trial
is almost a year away and the conclusory claim of prejudice
is, well, implausible. He has not articulated any prejudice
in permitting Encore to support its affirmative defense with
more specific factual allegations.
Court is not inclined to require an amended answer when there
are other, far more efficient ways to ascertain what Encore
thinks are its adequate procedures. Anderson's Motion to