Balon v. Enhanced Recovery Co.

316 F.R.D. 96, 2016 U.S. Dist. LEXIS 156519, 2016 WL 4992099
District Court, M.D. Pennsylvania·Decided September 15, 2016·No. CIVIL ACTION NO. 3:16-CV-0410·Published·Cited by 12 cases

Opinion

MEMORANDUM

William J. Nealon, United States District Judge

Plaintiff, Kariann Balón, filed a complaint against Defendant, Enhanced Recovery Company, Inc., alleging that Defendant violated the Fair Debt Collection Practices Act,15 U.S.C. § 1692, et seq. (“FDCPA”). (Doc. 1). On March 16, 2016, Defendant filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and brief in support. (Docs. 3, 4). On June 2, 2016, Defendant’s motion to dismiss was denied. (Docs. 9, 10). On June 16, 2016, Defendant filed its answer and corporate disclosure statement. (Docs. 11, 12). On June 29, 2016, Defendant filed an amended answer. (Doc. 15). On July 25, 2016, Plaintiff filed a motion to strike the second and third affirmative defenses in Defendant’s amended answer. (Doc. 18). On August 9, 2016, Plaintiff filed her brief in support.1 (Doc. 19). On August [98]*9823, 2016, Defendant filed its brief in opposition. (Doc. 20). On August 24, 2016, Plaintiff filed her reply. (Doc. 21). As a result, Plaintiffs motion to strike the second and third affirmative defenses in the amended answer is ripe for disposition. For the reasons stated below, Plaintiffs motion to strike Defendant’s second and third affirmative defenses in its amended answer will be granted.

I. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(f), a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court may act under Rule 12(f) “on its own” or “on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Fed. R. Crv. P. 12(f)(l)-(2). “A Rule 12(f) motion to strike is the ‘primary procedure’ for objecting to an insufficient affirmative defense.” Sinclair Cattle Co. v. Ward, 2015 WL 6125260, at *2, 2015 U.S. Dist. LEXIS 140746, at *3-4 (M.D.Pa.2015) (Conner, J.) (citing Wincovitch v. Edwin A. Abrahamsen & Assocs., 2013 WL 1909578, 2013 U.S. Dist. LEXIS 65799 (M.D.Pa.2013) (Nealon, J.); 5C CHARLES Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (3d ed. 2015)).

“Motions to strike are decided on the pleadings alone, and should not be granted unless the relevant insufficiency is ‘clearly apparent.’ ” Stewart v. Keystone Real Estate Grp., LP, 2015 WL 1471320, at *5, 2015 U.S. Dist. LEXIS 40912, at *13 (M.D.Pa.2015) (Brann, J.) (quoting Cipollone v. Liggett Grp., Inc., 789 F.2d 181, 188 (3d Cir.1986)). “While ‘courts possess considerable discretion in weighing Rule 12(f) motions, such motions are not favored,’ and courts are reticent to grant them,” Id. (quoting Miller v. Grp. Voyagers, Inc., 912 F.Supp. 164, 168 (E.D.Pa.1996)); see Intermetro Indus. Corp. v. Enovate Med., LLC, 2016 WL 521535, at *7, 2016 U.S. Dist. LEXIS 14341, at *20 (M.D.Pa. Feb. 5, 2016) (Mariani, J.). Such motions should be denied unless the allegations have no possible relation to the controversy, may cause prejudice to one of the parties, or confuses the issues. Wincovitch, 2013 WL 1909578, at *1, 2013 U.S. Dist. LEXIS 65799, at *2 (citing Hanselman v. Olsen, 2006 WL 47655, 2006 U.S. Dist. LEXIS 1715 (M.D.Pa.2006) (McClure, J.); McInerney v. Moyer Lumber & Hardware, Inc., 244 F.Supp.2d 393, 402 (E.D.Pa.2002)). “One court noted that a [12(f) ] motion should ‘be denied unless allegations have no possible relation to the controversy and may cause prejudice to one of the parties.’” Stewart, 2015 WL 1471320, at *6, 2015 U.S. Dist. LEXIS 40912, at *13 (quoting Hanselman, 2006 WL 47655, at *1, 2006 U.S. Dist. LEXIS 1715, at *4); see Intermetro Indus. Corp., 2016 WL 521535, at *7, 2016 U.S. Dist. LEXIS 14341, at *20 (quoting Krisa v. Equitable Life Assurance Soc’y, 109 F.Supp.2d 316, 319 (M.D.Pa.2000) (Vanaskie, J.)). Notably, ‘prejudice to one or more of the parties [is the] touchstone for deciding a motion to strike.” Fulton Fin. Advisors, Nat’l Ass’n v. NatCity Invs., Inc., 2013 WL 5635977, at *19, 2013 U.S. Dist. LEXIS 148025, at *67 (E.D.Pa.2013); Sinclair Cattle Co., 2015 WL 6125260, at *1, 2015 U.S. Dist. LEXIS 140746, at *3 (quoting Fulton Fin. Advisors, 2013 WL 5635977, at *19, 2013 U.S. Dist. LEXIS 148025, at *67; citing Wincovitch, 2013 WL 1909578, at *1, 2013 U.S. Dist. LEXIS 65799, at *2-3).

II. DISCUSSION

Plaintiff argues that two (2) of Defendant’s affirmative defenses should be stricken. Specifically, Plaintiff challenges Defendant’s bona fide error defense asserted pursuant to 15 U.S.C. § 1692k(c) and the statute of limitations defense asserted under 15 U.S.C. § 1692k(d).2 (Doc, 19, p. 2). However, before [99]*99reaching the merits of Plaintiffs motion, the Court must first address whether the instant motion was timely filed.

A. Timeliness of Plaintiffs Motion to Strike

Under Federal Rule of Civil Procedure 12(f), a court may act “on its own” or “on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Fed. R. Civ. P. 12(f). Plaintiff filed the instant motion to strike portions of Defendant’s June 29, 2016 amended answer. (Doe. 16). Thus, she had to file the motion at issue within 21 days from June 29, 2016, or, more specifically, by July 20, 2016. See Fed. R. Civ. P. 6(a)(1), 12(f)(2). However, as stated, Plaintiff filed her motion on July 25, 2016. (Doc. 18). As a result, Plaintiffs motion is untimely under Rule 12(f)(2).

Importantly, untimeliness is not fatal to a motion to strike under Rule 12(f). Specifically, even if a motion to strike is found to be untimely, a court:

could still properly consider the merits of the motion because Rule 12(f) permits the Court to act “on its own,” and this authority “to strike an insufficient defense on its ‘own initiative at any time’ has been interpreted to allow the district court to consider untimely motions to strike and grant them if doing so seems proper.”

Newborn Bros. Co. v. Albion Eng’g Co., 299 F.R.D. 90, 95 (D.N.J.2014) (alterations in original) (quoting 5C Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 1380 (3d ed. 2004)). “Accordingly, ‘the time limitations set out in Rule 12(f) should not be applied strictly when the motion to strike seems to have merit.’ [footnote omitted]” Id. (quoting 5C Charles Alan Wright & Arthur Miller, Federal Practice and Procedure, § 1380; citing Huertas v. U.S. Dep’t of Educ., 2009 WL 2132429, at *1 n. 1, 2009 U.S. Dist. LEXIS 59320, at *4 n. 1 (D.N.J.2009)).

As discussed in more detail below, Plaintiffs motion to strike has merit.

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Balon v. Enhanced Recovery Co., 316 F.R.D. 96, 2016 U.S. Dist. LEXIS 156519, 2016 WL 4992099 (M.D. Pa. 2016).

316 F.R.D. 96 (Balon v. Enhanced Recovery Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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