Plaintiffs litigating TCPA cases in the Western District of WA - Judge just gave you a great opinion on striking improper affirmative defenses
- Peter Schneider
- Oct 25
- 10 min read
If you are litigating a telephone consumer protection act, fair debt collection practices act, or fair credit reporting act lawsuit, you probably are no stranger to receiving 20-30 boiler plate affirmative defenses.
Western District of Washington federal judge David G. Estudillo just handed you a great opinion on how to either get them struck, or force the defendant to give fair notice of the defense. The case is Silver v. Capital One, N.A., No. 3:25-cv-05175-DGE, 2025 U.S. Dist. LEXIS 197614 (W.D. Wash. Oct. 6, 2025). The background is taken from the court's opinion.
A Mr. Silver sued Capital One for violations of the Fair Credit Reporting Act, claiming Capital One failed to conduct a reasonable investigation or correct alleged inaccurate reporting of Plaintiff's credit report. Capital one filed an Answer replete with 27 affirmative defenses. Mr. Silver moved to strike them, and I'll post the affirmative defense and the court's ruling on those attacked, one by one:
1. Plaintiff has failed, in whole or in part, to state a claim upon which relief may be granted.
The Ninth Circuit is clear that failure to state a claim is not a proper affirmative defense. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) ("A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense."). As the Smith court explained, "[t]he assertion of failure to state a claim upon which relief can be granted is not an affirmative defense; rather, it challenges the legal or factual sufficiency of a plaintiff's claims, and necessarily means that the plaintiff cannot meet his or her burden of proof." Smith, 2019 U.S. Dist. LEXIS 126913, 2019 WL 3428744 at *1; see also White, 2023 U.S. Dist. LEXIS 89094, 2023 WL 3582395 at *6 ("Failure to state a claim for relief is not an affirmative defense"); Bushbeck 2010 U.S. Dist. LEXIS 151472, 2010 WL 11442904, at *2-4 (same). Accordingly, the Court STRIKES Defendant's first affirmative defense without leave to amend and notes that Defendant may challenge Plaintiff's claims in a motion for judgment on the pleadings under Rule 12(c) or in another dispositive motion later in litigation. See Fed. R. Civ. P. 12(c)
2. Plaintiff has failed to mitigate his damages, if any.
"[W]hen reviewing a motion to strike affirmative defenses, it is important to differentiate between an affirmative defense and a denial," which "points out a defect in or negates a plaintiff's prima facie case." Padilla v. Experian Info. Sols. Inc., No. 23-CV-60669, 2023 U.S. Dist. LEXIS 233062, 2023 WL 9228313, *2 (S.D. Fla. Oct. 13, 2023); see also Guirguis, 2021 U.S. Dist. LEXIS 37379, 2021 WL 77911, at *2. Plaintiff argues that the failure to mitigate defense lacks any supporting facts showing it applies to this case. Defendant argues Plaintiff was made aware of its position "through pleading challenges to both the Complaint and the FAC." (Dkt. No. 36 at 4.) However, as written, Defendant's second affirmative defense does not provide Plaintiff with notice of the basis of his alleged failure to mitigate. Accordingly, Defendant's second affirmative defense is STRICKEN with leave to amend. [Also note that nearly all courts have held there is no duty to mitigate statutory TCPA damages]
3. Plaintiff's damages, if any, were caused by the actions and/or inaction of third parties and/or intervening causes over which Capital One has no control.
4. Damages or injuries, if any, suffered by Plaintiff are attributable to Plaintiff's own conduct, deeds, acts, words and omissions, and not to any conduct, deeds, acts, words or omissions of Capital One. Plaintiff's claims are barred or reduced by his own negligence, mistake or fraud.
16. Any and all harm alleged by Plaintiff can be attributed to several causes, and the damages for the harm, if any, should be apportioned among the various causes, according to the contribution of each cause to the harm sustained.
24. The FAC, and each purported cause of action alleged therein, is barred by the conduct, action and inactions of Plaintiff, which amount to and constitute a waiver of any right or rights Plaintiff may or might have in relation to the matters alleged in the FAC.
Defendant has failed to provide fair notice to Plaintiff with these affirmative defenses as it does not state who the "third parties" are, which "causes" caused Plaintiff's harm, or elaborate on any relevant conduct. See Opico v. Convergent Outsourcing, Inc., 2019 U.S. Dist. LEXIS 67238, 2019 WL 1755312 (W.D. Wash. 2019) (citing Bonshahi v. Fedex Corp., No. C12-2471 TEH, 2012 U.S. Dist. LEXIS 119013, 2012 WL 3638608, at *3 (N.D. Cal. Aug. 22, 2012)) (granting motion to strike similar affirmative defense when defendants "fail[ed] to identify any such third parties or explain why the involvement of third parties relieve[d] them of liability"); see also Bell, 2020 U.S. Dist. LEXIS 53514, 2020 WL 1452552 at *3. Accordingly, these affirmative defenses are STRICKEN with leave to amend. [This is huge, use this opinion to force the defendant to drop them, or force them to into explanations]
5. Capital One acted at all times in compliance with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and it is entitled to each and every defense stated in the Act and all limitations of liability.
Defendant fails to provide fair notice to Plaintiff as to which defenses it is asserting. Accordingly, Defendant's fifth affirmative defense is STRICKEN with leave to amend.
6. Capital One acted reasonably and in good faith at all material times based on all relevant facts and circumstances known by it at the time it so acted.
Under the FCRA, a consumer may recover compensatory damages for negligent violations and statutory and punitive damages for willful violations. See 15 U.S.C. §§ 1681n, 1681o. To show that a violation was willful, a plaintiff must show that the defendant either knowingly violated the FCRA or recklessly disregarded the FCRA's requirements. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 69, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007). To show that a defendant recklessly disregarded the FCRA's requirements, a plaintiff must show that the defendant "ran a risk of violating the law substantially greater than the risk associated with a reading [of the FCRA] that was merely careless." Id. The defense that Defendant acted in good faith is merely demonstrating that Plaintiff has not met his burden of proof. Accordingly, Defendant's sixth affirmative defense is STRICKEN without leave to amend.
7. Plaintiff is estopped from recovering from Capital One.
"The elements of equitable estoppel are that (1) the party to be estopped knows the facts, (2) he or she intends that his or her conduct will be acted on or must so act that the party invoking estoppel has a right to believe it is so intended, (3) the party invoking estoppel must be ignorant of the true facts, and (4) he or she must detrimentally rely on the former's conduct." Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir.1998). The Court finds that Defendant has not alleged any facts that would support a defense of equitable estoppel against Plaintiff, and instead has merely pleaded a legal conclusion which is insufficient to withstand Plaintiff's motion to strike. Accordingly, Defendant's seventh affirmative defense is STRICKEN with leave to amend.
14. At all relevant times, Capital One maintained reasonable procedures to ensure compliance with state and federal law.
Section 615 of the FCRA provides that "[n]o person shall be held liable for any violation of this section if he shows by a preponderance of the evidence that at the time of the alleged violation he maintained reasonable procedures to assure compliance with the provisions of this section." 15 U.S.C. § 1681m(c). Defendant's proffered defense is not aimed at negating any of the prima facie elements of Plaintiff's claim for a violation of 15 U.S.C. § 1681s-2(b). Rather, Defendant asserts that even if Plaintiff established the prima facie elements of his claim, Defendant should not be held liable because it had reasonable procedures in place. This is a valid affirmative defense. [This ruling is specific to the FCRA]
15. Capital One is informed and believes, and on that basis alleges that it met or exceeded the requirements of all applicable state and federal laws, statutes and regulations and, therefore, cannot be held liable for any alleged damages suffered by Plaintiff.
Plaintiff moves to strike Defendant's fifteenth affirmative defense on the ground that it is duplicative and amounts to a denial of Plaintiff's allegations. (Dkt. No. 33 at 2.) The Court finds that Defendant's fifteenth affirmative defense is duplicative as it does not allege sufficiently distinct factual information from that contained in Defendant's fourteenth affirmative defense. Additionally, this defense purports to attack the prima facie elements of Plaintiff's claim, which is not a valid affirmative defense. Accordingly, Defendant's fifteenth affirmative defense is STRIKEN without leave to amend.
18. Plaintiff lacks standing to assert the claims alleged in this action against Capital One, because Plaintiff did not suffer a concrete injury.
As the Ninth Circuit has explained, "[a] defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense." Zivkovic, 302 F.3d at 1088. Therefore, "an assertion that the plaintiff suffered no damages is not an affirmative defense, because it is essentially an allegation that the plaintiff cannot prove the elements of its claims." See Surface Supplied, Inc. v. Kirby Morgan Dive Sys. Inc., No. C-13-575 MMC, 2013 U.S. Dist. LEXIS 143478, 2013 WL 5496961, (N.D. Cal. Oct 3, 2013) (citation omitted). Accordingly, Defendant's eighteenth affirmative defense is STRICKEN without leave to amend.
23. Plaintiff's claims are barred by the doctrine of unclean hands.
Unclean hands can operate as a defense where a plaintiff has "acted unconscionably, in bad faith, or inequitably in the matter in which the plaintiff seeks relief." Canupp v. Children's Receiving Home of Sacramento, 181 F.Supp.3d 767, 797 (E.D. Cal. 2016) (quoting Salas v. Sierra Chem. Co., 59 Cal. 4th 407, 173 Cal. Rptr. 3d 689, 327 P.3d 797 (2014)). Simply alleging that Plaintiff's hands are unclean without explaining what the specific misconduct alleged was, does not give fair notice of the grounds for the defense or explain how the defense might apply in this case. Accordingly, Defendant's twenty-third affirmative defense is STRICKEN with leave to amend.
25. Through Plaintiff's own conduct, acts or omissions, Plaintiff consented and acquiesced to Capital One's conduct.
To establish an FCRA claim under 15 U.S.C. § 1681s-2(b) against a furnisher of information, Plaintiff must show that "'(1) [Plaintiff] found an inaccuracy in [their] credit report; (2) [they] notified a [CRA]; (3) the [CRA] notified the furnisher of the information about the dispute; and (4) the furnisher failed to investigate the inaccuracies or otherwise failed to comply with the requirements of' Section 1681s-2(b)." King v. PennyMac Loan Servs., LLC, No. 4:24-CV-05002-MKD, 2024 U.S. Dist. LEXIS 84023, 2024 WL 2064056, (E.D. Wash. May 8, 2024) (some alteration in original) (quoting Biggs v. Experian Info. Sols., Inc., 209 F. Supp. 3d 1142, 1144 (N.D. Cal. 2016)). Whether Plaintiff consented to Defendant's conduct is immaterial to whether Defendant failed to investigate the alleged inaccuracies of the credit report. Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike from a pleading an immaterial matter. Accordingly, Defendant's twenty-fifth affirmative defense is STRICKEN without leave to amend.
26. The FAC, and each claim alleged therein, is barred, in whole or in part, on the grounds that Capital One did not engage in malice as its conduct was not knowing, willful or intentional.
To prevail on an FCRA claim, "Plaintiff must show that the Defendant acted willfully or negligently" when it "fail[ed] to comply with" the FCRA. Myers v. Bennett L. Offs., 238 F. Supp. 2d 1196, 1200-01 (D. Nev. 2002) (citing 15 U.S.C. § 1681n-o). In the context of an FCRA claim, the "standard of conduct required to avoid negligence [is] that of a reasonably prudent person under similar circumstances." Banga v. Chevron U.S.A., Inc., No. C-11-01498 JCS, 2013 U.S. Dist. LEXIS 2271, 2013 WL 71772, at *11 (N.D. Cal. Jan. 7, 2013) (quoting Almaraz v. Universal Marine Corp., 472 F.2d 123, 124 (9th Cir. 1972)); Pintos v. Pac. Creditors Ass'n, No. C 03-5471 CW, 2011 U.S. Dist. LEXIS 99208, 2011 WL 3880411, (N.D. Cal. Sept. 2, 2011) (same). Defendant's assertion is simply a contention that Plaintiff cannot prove it acted willfully. "An affirmative defense is an assertion raising new facts and arguments that, if true, would defeat the plaintiff's claim, even if the allegations in the complaint are true." Ramirez v. Olympic Health Mgmt. Sys. Inc., No. CV-07-3044-EFS, 2009 U.S. Dist. LEXIS 34162, 2009 WL 1107243, (E.D. Wash. Apr. 21, 2009) (emphasis added). On the other hand, "[a] defense which demonstrates that plaintiff has not met its burden of proof as to an element plaintiff is required to prove is not an affirmative defense. Zivkovic, 302 F.3d at 1088. "Such a defense is merely rebuttal against the evidence presented by the plaintiff." Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1173-74 (N.D. Cal. 2010). Because this affirmative defense is simply an assertion that Defendant was not willful, it is not a recognized affirmative defense to FCRA. Accordingly, the twenty-sixth affirmative defense is STRICKEN without leave to amend.
27. Capital One reserves the right to supplement its affirmative defenses as it continues with its factual investigations of Plaintiff's claims.
This affirmative defense is insufficient as a matter of law. An attempt to reserve affirmative defenses for a future date is not a proper affirmative defense in itself. See Reis Robotics U.S.A., Inc. v. Concept Indus., Inc., 462 F.Supp.2d 897, 907 (N.D.Ill.2006). Instead, if at some later date Defendant seek to add affirmative defenses, it must comply with Rule 15 of the Federal Rules of Civil Procedure. Defendant cannot avoid the requirements of Rule 15 simply by reserving "the right to supplement its affirmative defenses." (Dkt. No. 32 at 8.) Accordingly, Defendant's twenty-seventh affirmative defense is STRICKEN without leave to amend.
Mr. Silver got such great results that I pulled his motion for all to enjoy.
And some bonus material on pleading a FCRA failure to investigate claim.
Along with the court's full opinion on striking the affirmative defenses.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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