UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GERRY RUFF, 

 Plaintiff, 

 Case No. 2:18-cv-351 

 JUDGE GEORGE C. SMITH 

 v. Magistrate Judge Jolson 

CREDIT ADJUSTMENT, INC., 

 Defendant. 

OPINION AND ORDER

 Presently pending before the Court is Plaintiff Gerry Ruff’s Motion to Strike the Answer 

and certain affirmative defenses asserted by Defendant, Credit Adjustment, Inc. (Doc. 11)1

. 

Defendant responded (Doc. 12) and Plaintiff’s time to file a reply has lapsed. Accordingly, the 

motion is ripe for disposition. For the reasons that follow, Plaintiff’s Motion to Strike is

DENIED. 

I. BACKGROUND 

 Plaintiff filed a complaint against Defendant alleging violations of the Fair Debt 

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692f(1), and the Telephone Consumer 

Protection Act (“TCPA”), 47 U.S.C. § 2277. (Doc. 5). Plaintiff first alleges that Defendant has 

charged Plaintiff unauthorized and unverified “[i]nterest and other fees on an alleged debt[.]” 

(Doc. 5, Compl. ¶¶ 8–9). Plaintiff further alleges that on at least two separate occasions, 

 

1

 Although Plaintiff has titled this filing “Motion to Strike Defendant [sic] Answer and Affirmative Defense [sic],” 

Plaintiff has only raised arguments to strike certain affirmative defenses. As such, this Court will only rule on 

Plaintiff’s Motion to Strike these affirmative defenses. 
2 

Defendant—a debt collector—contacted Plaintiff through the use of an automated dialer without 

Plaintiff’s consent. (Id. at ¶¶ 11–12). 

Defendant timely answered Plaintiff’s allegations and pleaded seven affirmative 

defenses. These defenses state: 

(1) Pursuant to 15 U.S.C. § 1692k(c), to the extent that a violation(s) is established 

and in the event [Defendant] is found to be a debt collector as defined in FDCPA, 

which is denied, any such violation(s) was not intentional and resulted from a 

bona fide error, notwithstanding the maintenance of procedures reasonably 

adapted to avoid such error. 

(2) Any harm suffered by plaintiff was legally and proximately caused by persons, 

individuals, corporations, or entities beyond the control or supervision of 

[Defendant], or for whom [Defendant] is not responsible or liable. 

(3) Assuming that plaintiff suffered any damages, plaintiff has failed to mitigate 

damages or take other reasonable steps to avoid or reduce his damages 

(4) [Defendant] denies any liability; however, regardless of liability, Plaintiff has 

suffered no damages as a result of the alleged violations of law. 

(5) Plaintiff’s claims are barred in whole or in party by the applicable statute of 

limitations, res judicata, and/or collateral estoppel, and the doctrine of unclean 

hands. 

(6) The phone calls made to plaintiff, if any, are exempt from TCPA liability under 

47 U.S.C. § 227(b)(1)(B), 47 U.S.C. § 227(b)(2)(B), and 47 C.F.R. § 64.1200(a). 

(7) One or more of the calls was made by equipment that did not have the capacity to 

store or produce telephone numbers to be called using a random or sequential 

number generator and to dial such numbers; one or more of the calls was made 

without using an artificial or prerecorded voice. 

 (Doc. 9, Ans. at 6–7). Plaintiff now moves to strike Defendant’s First, Second, Sixth, and 

Seventh Affirmative Defenses, in whole, and to partially strike Defendant’s Fifth Affirmative 

Defense. (Doc. 11). 

II. STANDARD OF REVIEW 

 Rule 12 permits a court to “strike from a pleading an insufficient defense or any redundant, 

immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). However, “because of the 
3 

practical difficulty of deciding cases without a factual record it is well established that the action 

of striking a pleading should be sparingly used by the courts.” Brown & Williamson Tobacco 

Corp. v. United States, 201 F.2d 809, 822 (6th Cir. 1953) (citation omitted). 

Motions to strike are generally disfavored, but such motions “should be granted if ‘it 

appears to a certainty that plaintiffs would succeed despite any state of the facts which could be 

proved in support of the defense and are inferable from the pleadings.’ ” Operating Eng’rs Local 

324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (quoting Williams 

v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991)). When ruling on a motion to strike, an 

affirmative defense will survive if it is pleaded in general terms and “ ‘gives plaintiff fair notice of 

the nature of the defense.’ ” Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir. 2006) (quoting 

5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274). Plaintiff has 

“fair notice” of the defense “ ‘if the defendant sufficiently articulate[s] the defense so that the 

plaintiff [is] not a victim of unfair surprise.’ ” Mills v. United Producers, Inc., No. 11-13148, 2012 

WL 3870220, at *23 (E.D. Mich. Sept. 6, 2012) (quoting Woodfield v. Bowman, 193 F.3d 354, 

362 (5th Cir. 1999)). 

III. DISCUSSION 

 Plaintiff asserts that Defendant’s First, Second, Fifth, Sixth, and Seventh Affirmative 

Defenses must be stricken because: (1) the pleadings do not give Plaintiff fair notice; (2) Defendant 

asserts inapplicable defenses; (3) the defenses are immaterial; and (4) Defendant failed to 

sufficiently plead the defenses with particularity. (Doc. 11, Mot. at 1). 

There is a split amongst the district courts as to whether the pleading standards set forth in 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and 

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) are applicable to 

affirmative defenses. The Sixth Circuit has not weighed in on this issue. See Herrera v. Churchill 
4 

McGee, LLC, 680 F.3d 539, 547 n.6 (6th Cir. 2012) (“We therefore have no occasion to address, 

and express no view regarding, the impact of . . . Twombly . . . and Iqbal . . . on affirmative 

defenses[]”); Sprint Solutions Inc. v. Shoukry, No. 2:14-CV-127, 2014 WL 5469877, at *2 (S.D. 

Ohio Oct. 28, 2014) (Sargus, J.) (acknowledging the district courts’ split and declining to apply 

Twombly/Iqbal pleading standards to affirmative defenses); Doe by and through Doe v. Bd. Of 

Educ. Of Highland Local Sch. Dist., No. 2:16-CV-254, 2017 WL 3588727, at *2 (S.D. Ohio Aug. 

21, 2017) (Marbley, J.) (acknowledging district courts’ split and applying Twombly/Iqbal pleading 

standard to affirmative defenses). 

Neither the Supreme Court2

 nor the Sixth Circuit have explicitly held that the 

Twombly/Iqbal pleading standard applies to affirmative defenses; as such, this Court declines to 

do so. Declining to apply the Twombly/Iqbal standard to defenses is consistent with Rule 8. Rule 

8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). Conversely, Rule 8(c)(1) merely requires that “[i]n responding to 

a pleading a party must affirmatively state any avoidance or affirmative defense. . . .” 

Fed. R. Civ. P. 8(c)(1); see also Sprint Solutions, 2014 WL 5469877, at *2 (finding that the 

Twombly/Iqbal pleading standard does not apply to affirmative defenses because of the contrasting 

language of Rule 8(a)(2) and Rule 8(c)(1)). 

A. Bona Fide Error 

The first issue before the Court is whether Defendant sufficiently pleaded the bona fide

error defense found in 15 U.S.C. § 1692k(c).3

 The Sixth Circuit has not offered guidance as to 

 

2

 Facially, Twombly only applies to pleadings under Rule 8(a)(2), as the Court merely interpreted the requirement of 

“ ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Twombly, 550 U.S. at 555 

(quoting Fed.R.Civ.P. 8(a)(2)). Likewise, the Court’s decision in Iqbal focused solely on the plaintiff’s pleading 

burden under Rule 8(a)(2). Iqbal, 556 U.S. at 677–687. 3

 Section 1692k(c) provides that: “[a] debt collector may not be held liable . . . if the debt collector shows by a 

preponderance of the evidence that the violation was not intentional and resulted from a bona fide error 

notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). 
5 

which pleading standard is required when pleading a bona fide error defense. Defendant proffers 

“that a majority of courts (including those within this Circuit) reject” applying Rule 9(b)’s 

heightened pleading standards to the bona fide error defense. (Doc. 12, Res. at 4). However, 

such a broad statement seems to oversimplify this issue. 

Several district courts have required a defendant to plead a bona fide error defense with 

particularity, pursuant Rule 9(b). See Martin v. Trott Law, P.C., 265 F.Supp.3d 731, 740 (E.D. 

Mich. 2017); Walters v. Performant Recovery, Inc., 124 F.Supp.3d 75, 82 (D. Conn. 2015); 

Arnold v. Bayview Loan Servicing, LLC, et al., No. 14-0543, 2016 WL 375154, at *7 (S.D. Ala. 

Jan. 29, 2016); Nguyen v. HOVG, LLC, No. 14CV837, 2014 WL 5361935, at *2 (S.D. Cal. Oct. 

20, 2014); Balon v. Enhanced Recovery Co., Inc., 316 F.R.D. 96, 103 (M.D. Pa. 2016); Wiebe v. 

Zakheim & Lavrar, P.A., No. 6:12-CV-1200, 2012 WL 5382181, at *2 (M.D. Fla. Nov. 1, 2012); 

Konewko v. Dickler, Kahn, Sloikowsi & Zavell, Ltd., No. 07 C 5338, 2008 WL 2061551, at *1 

(N.D. Ill. May 14, 2008); Vanhuss v. Kohn Law Firm S.C., 127 F.Supp.3d 980, 984 (W.D. Wis. 

2015); Savage v. Citibank N.A., No. 14-CV-03633, 2015 WL 4880858, at *2 (N.D. Cal. Aug. 15, 

2015); Bradshaw v. Hilco Receivables, LLC, 725 F.Supp.2d 532, 537 (D. Md. 2010); Rahman v. 

San Diego Accounts Serv., No. 16CV2061, 2017 WL 1387206, at *3 (S.D. Cal. Apr. 18, 2017); 

Randolph & Tabetha Sellers v. Rushmore Loan Mgmt. Servs., LLC, No. 3:15-CV-1106, 2016 

WL 11431489, at *4 (M.D. Fla. May 26, 2016); Walker v. Credit Control Servs., Inc., No. 8:15-

CV-1114, 2015 WL 4571158, at *2 (M.D. Fla. July 28, 2015). 

On the other hand, several district courts have specifically rejected the argument that a 

defendant is required to plead a bona fide error defense with particularity. See Amaya v. 

Crowson & Crowson, LLP, No. EP-13-CV-00130, 2013 WL 12126784, at *2 (W.D. Tex. Aug. 

19, 2013); Prindle v. Carrington Mortg. Servs., LLC, No. 3:13-CV-1349, 2016 WL 9504253, at 
6 

*4 (M.D. Fla. May 27, 2016); Saeedi v. M.R.S. Assocs., Inc., No. C 07-01584, 2007 WL 

1875975, at *1 (N.D. Cal. June 28, 2007); Talamor v. I.C. Sys., Inc., No. A-16-CV-0435, 2016 

WL 8674348, at *2 (W.D. Tex. Aug. 30, 2016). 

A number of courts have simply applied Rule 8 without addressing the applicability of 

Rule 9 to this affirmative defense. See Whitehead v. Discover Bank, No. 15-C-0261, 2015 WL 

11017803, at *1–*2 (E.D. Wis. Nov. 20, 2015) (applying Rules 8(b) and (c)); Harris v. 

Nationstar Mortg., LLC, No. 8:13-CV-2610, 2014 WL 11332305, at *3 (S.D. Fla. Apr. 23, 2014) 

(same); Brown v. Jungers, No. 8:08CV451, 2009 WL 159700, at *2–*3, *5 (D. Neb. Jan. 22, 

2009) (same); Michaud v. Greenberg & Sada, P.C., No. 11-CV-01015, 2011 WL 2885952, at *4 

(D. Colo. July 18, 2011) (same); Sewell v. Allied Interstate, Inc., No. 3:10-CV-113, 2011 WL 

32209, at *8 (E.D. Tenn. Jan. 5, 2011) (same); Hahn v. Best Recovery Servs., LLC, No. 10-

12370, 2010 WL 4483375, at *2–*3 (E.D. Mich. Nov. 1, 2010) (same); Williamson v. Unifund 

CCR Partners, No. 8:08CV218, 2009 WL 187702, at *2–*3, *5 (D.Neb. Jan. 23, 2009) (same); 

Denova v. Ocwen Loan Servicing, LLC, No. 8:17-CV-02204-23, 2018 WL 1832901, at *6 (M.D. 

Fla. Jan. 25, 2018) (same); Husainy v. Allied Collection Serv., Inc., No. 4:15-CV-95, 2016 WL 

1604825, at *2 (N.D. Ind. Apr. 22, 2016) (same); see also Gandeza v. Brachfeld Law Grp., No. 

C 13-0818, 2013 WL 3286187, at *2 (N.D. Cal. June 27, 2013) (applying Twombly/Iqbal

pleading standard); Burns v. Dodeka, LLC, No. 4:09-CV-19, 2010 WL 1903987, at *1 (N.D. 

Tex. May 11, 2010) (same); Racick v. Dominion Law Assocs., 270 F.R.D. 228, 235 (E.D. N.C. 

2010) (same); Godson v. Eltman, Eltman & Cooper, P.C., 285 F.R.D. 255, 259-60 (W.D. N.Y. 

2012) (same); Perez v. Gordon & Wong Law Grp., P.C., No. 11-CV-033230, 2012 WL 1029425, 

at *10 (N.D. Cal. Mar. 26, 2012) (same); Nyberg v. Portfolio Recovery Assocs., LLC, No. 3:15-
7 

CV-01175, 2016 WL 3176585, at *4 (D. Or. June 2, 2016) (same); Jacobson v. Persolve, LLC, 

No. 14-CV-00735, 2014 WL 4090809, at *8 (N.D. Cal. Aug. 19, 2014) (same). 

Whereas other courts have acknowledged this split amongst the district courts and have 

declined to decide whether a Rule 9 pleading standard is required for bona fide error defenses. 

See Robinson v. Nat’l Credit Sys., Inc., No. 2:17-CV-386, 2018 WL 1877462, at *4 n.2 (M.D. 

Fla. Apr. 19, 2018); Roth v. Nationstar Mortg., LLC, No. 2:15-CV-783, 2016 WL 7094023, at *3 

n.3 (M.D. Fla. Dec. 6, 2016); Polk v. Legal Recovery Law Offices, 291 F.R.D. 485, 490–91 (S.D. 

Cal. 2013). 

Simply put, district courts have varied widely with their approach to which pleading 

standard a defendant must meet when asserting a bona fide error defense. This Court recognizes 

the district courts’ split and finds that, absent further guidance from the Sixth Circuit, the Court 

shall apply this Circuit’s Rule 8 pleading requirement to a bona fide error defense. Thus, a bona 

fide error defense “may be pleaded in general terms” and not be stricken “as long as it gives 

plaintiff fair notice of the nature of the defense.” Lawrence, 182 F. App’x at 456 (citation and 

internal quotations omitted). 

Defendant’s Answer provides Plaintiff with fair notice of the nature of the bona fide error 

defense. The determination of whether Defendant can factually support this affirmative defense 

will be unveiled through the discovery process. As of now, there are facts “inferable from the 

pleadings” that could support Defendant’s bona fide error defense. Thus, striking Defendant’s 

bona fide error defense, at this time, would be improper. Accordingly, the Court denies 

Plaintiff’s Motion to Strike Defendant’s first affirmative defense. 

B. Harm was not Legally and Proximately Caused by Defendant 

The second issue before the Court is whether Defendant’s second affirmative defense: 1) 

is permitted under the Rules and the Code; and 2) provides Plaintiff with sufficient notice as to 
8 

the nature of the defense. Rule 8(c) requires a defendant to “affirmatively state any avoidance or 

affirmative defense[.]” Fed. R. Civ. P. 8(c)(1) (emphasis added). The list of affirmative 

defenses enumerated in Rule 8(c) is non-exhaustive, as indicated by the plain language of the 

rule. See id. Although Defendant’s second affirmative defense is not specifically mentioned in 

Rule 8(c), nevertheless, it is “a matter constituting avoidance,” and an affirmative defense that is 

properly raised in Defendant’s Answer. 

Defendant’s general pleading of its second affirmative defense has fairly notified Plaintiff 

of the nature of this defense. Furthermore, it is not inferable from the pleadings that the defense 

cannot prevail. Thus, the Court denies Plaintiff’s Motion to Strike Defendant’s second 

affirmative defense. 

C. Res Judicata 

 Plaintiff next moves this Court to strike Defendant’s affirmative defense of res judicata 

asserting Defendant has not identified the previous judgment affecting the current case. (Doc. 

11). However, “an affirmative defense asserting nothing more than a statement that plaintiff’s 

claims were barred by the doctrine of res judicata [is] sufficient,” and properly notifies a plaintiff 

of such a defense. Powers v. Fifth Third Mortg. Co., No. 1:09-CV-2059, 2011 WL 3418290, at 

*3 (N.D. Ohio July 8, 2011) (citing Davis v. Sun Oil Co., 148 F.3d 606, 612 (6th Cir. 1998)). By 

pleading the affirmative defense of res judicata in Defendant’s fifth affirmative defense, 

Defendant has provided Plaintiff with fair notice of this defense. The Court denies Plaintiff’s 

Motion to Strike Defendant’s res judicata affirmative defense. 

D. Doctrine of Unclean Hands 

 Plaintiff contends that the doctrine of unclean hands is not a defense available to 

Defendant and that Defendant has failed to provide Plaintiff with fair notice as to the nature of 

this defense. (Doc. 11, Mot. at 3). The list of affirmative defenses in Rule 8(c)(1) is non-
9 

exhaustive. Fed. R. Civ. P. 8(c)(1). Because Defendant is seeking to avoid liability through the 

doctrine of unclean hands, Rule 8(c) permits such avoidance to be pleaded in Defendant’s 

Answer. See id. 

The doctrine of unclean hands is available as an affirmative defense when a plaintiff 

seeks equitable relief. See e.g. Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 

1373, 1383 (6th Cir. 1995). Plaintiff is seeking equitable relief. (Doc. 5, Compl. at 4, 5). 

Defendant has properly pleaded this material affirmative defense to give Plaintiff fair notice of 

the nature of the defense. See Sprint Solutions, 2014 WL 5469877, at *4 (holding that an 

affirmative defense that merely stated “Complaint is barred by Plaintiffs’ unclean hands” gave 

Plaintiff fair notice of defense). Thus, the Court denies Plaintiff’s Motion to Strike Defendant’s 

affirmative defense based on the doctrine of unclean hands. 

E. Exempt from Telephone Consumer Protection Act Liability 

 Plaintiff moves to strike Defendant’s sixth affirmative defense; that Defendant is exempt 

from TCPA liability under 47 U.S.C. § 227(b)(1)(B), 47 U.S.C. § 227(b)(2)(B), and 47 C.F.R. 

§ 64.1200(a). (Doc. 11, Mot. at 3). Plaintiff asserts that Defendant’s sixth affirmative defense 

failed to provide Plaintiff with fair notice as to the nature of the defense. (Id.). However, there 

are facts, “inferable from the pleadings,” that could support this defense. Additionally, 

Defendant’s general pleading is sufficient as to give Plaintiff fair notice of the nature of the 

defense. Therefore, the Court denies Plaintiff’s Motion to Strike Defendant’s sixth affirmative 

defense. 

F. Defendant did not have the Capability to Conduct Allegations in Count 2 

Lastly, Plaintiff seeks to strike Defendant’s seventh affirmative defense, again asserting 

that the affirmative defense does not provide Plaintiff with sufficient notice. (Doc. 11, Mot. at 

3–4). Plaintiff’s argument is unpersuasive. Defendant’s Answer fairly notifies Plaintiff as to the 
10 

nature of the defense and is not insufficient as a matter of law because from the facts “inferable 

from the pleadings” a “state of the facts” could be proven to support the claim that Defendant did 

not have the capability to auto-dial Plaintiff. See G & W Const. Co., 783 F.3d at 1050 (citation 

and internal quotations omitted). As such, the Court denies Plaintiff’s Motion to Strike seventh 

affirmative defense. 

IV. CONCLUSION 

 Accordingly, it is ordered that Plaintiff’s Motion to Strike certain affirmative defenses 

(Doc. 11) is DENIED. 

 The Clerk shall remove Document 11 from the Court’s pending motions list. 

 IT IS SO ORDERED. 

 s/ George C. Smith__________________ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT