Opinion
Civil Action No. 12-cv-03056-WYD-MEH
02-12-2013
JULIE SEGURA, Plaintiff, v. MEDICREDIT, INC., a Missouri corporation, Defendant.
ORDER
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff has moved to strike Defendant's affirmative defenses [filed January 2, 2013; docket #10]. Plaintiff asserts that some of the affirmative defenses identified in the Answer are not that at all, but rather merely a statement of potential future intention by the Defendant (e.g., the defense which attempts to preserve the bringing of a Rule 12(b)(6) motion, or the defense which attempts to preserve raising a future, as-yet-unidentified affirmative defense). Plaintiff asserts that other affirmative defenses have no application to this Fair Debt Collection Practices Act case. Defendant asserts that it placed some of these defenses under the heading "Affirmative and Other Defenses" and, thus, numbers 1 and 5 under that heading are "other defenses" and numbers 2-4 are "affirmative defenses."
Both parties are correct. However, the vast majority of courts do not strike a pleading under Fed. R. Civ. P. 12(f)(2) absent prejudice and, even then, such motions are disfavored. Loucks v. Shorest, LLC, 282 F.R.D. 637, 639 (M.D. Ala. 2012). Defendant asserts a lack of prejudice in its brief. Plaintiff does not address this argument. Because Plaintiff has not claimed any prejudice, I do not believe striking portions of the Answer is just under the law. I would ask that in the future Defendant be conscientious concerning the content of its answers and insert only such material as is relevant and necessary.
The Motion is denied.
Dated at Denver, Colorado, this 12th day of February, 2013.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge