Ditlevson v. Legal Express, Ltd. et al
Filing
21
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES; AFFORDING DEFENDANTS LEAVE TO AMEND ANSWER; VACATING HEARING. If Legal Express wishes to amend its answer, it shall file an amended answer no later than December 18, 2015. Signed by Judge Maxine M. Chesney on November 24, 2015. (mmclc1, COURT STAFF) (Filed on 11/24/2015)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
For the Northern District of California
United States District Court
10
11
LISA MARIE DITLEVSON,
Plaintiff,
12
13
14
15
No. C-15-3977 MMC
ORDER GRANTING PLAINTIFF’S
MOTION TO STRIKE AFFIRMATIVE
DEFENSES; AFFORDING DEFENDANTS
LEAVE TO AMEND ANSWER;
VACATING HEARING
v.
LEGAL EXPRESS, LTD., et al.,
Defendants.
/
16
17
Before the Court is plaintiff Lisa Marie Ditlevson’s (“Ditlevson”) “Motion to Strike
18
Affirmative Defenses Contained in Defendant, Legal Express, Ltd.’s Answer to Plaintiff’s
19
Complaint,” filed October 29, 2015. Defendant Legal Express, Ltd. (“Legal Express”) has
20
filed opposition, to which Ditlevson has replied. Having read and considered the papers
21
filed in support of and in opposition to the motion, the Court deems the matter suitable for
22
decision on the parties’ respective written submissions, VACATES the hearing scheduled
23
for December 4, 2015, and rules as follows.
24
In her complaint, Ditlevson alleges that Bleier & Co, APC (“Bleier”), filed a lawsuit
25
against her in state court “in an attempt to collect [a] defaulted consumer debt” (see Compl.
26
¶ 46), that Bleier hired Legal Express to serve the summons and complaint on Ditlevson
27
(see Compl. ¶ 47), and that Legal Express thereafter did not serve Ditlevson but prepared
28
for Bleier a “Proof of Service of Summons” that Legal Express knew falsely stated it had
1
served Ditlevson (see Compl. ¶¶ 50, 53, 57), which document Bleier filed in state court and
2
relied on when it obtained a default judgment (see Compl. ¶¶ 21, 55). Based on said
3
allegations, Ditlevson alleges against Legal Express two causes of action, specifically, a
4
federal claim under the Fair Debt Collection Practices Act (“FDCPA”) and a state claim
5
under the Rosenthal Fair Debt Collection Practices Act (“RFDCPA”). In response to the
6
complaint, Legal Express filed an answer, which includes seven “Affirmative Defenses”
7
(see Def.’s Answer ¶¶ 101-07), each of which Ditlevson challenges by the instant motion.
8
The Court addresses each said defense below.
9
At the outset, the Court will grant the motion to the extent it challenges the First,
10
Second, Fifth, Sixth and Seventh Affirmative Defenses, as Legal Express has “agree[d] to
11
withdraw” those defenses. (See Def.’s Opp. at 1:4-6.) The Court next considers the
12
sufficiency of the remaining defenses, specifically, the Third and Fourth Affirmative
13
Defenses.
14
In the Third Affirmative Defense, Legal Express alleges that “any violation was
15
unintentional and resulted despite the maintenance of procedures reasonably adopted to
16
avoid any such violation.” (See Answer ¶ 103.) By such pleading, however, Legal Express
17
has done no more than paraphrase the statutory language of provisions in FDCPA and the
18
RFDCPA, see 15 U.S.C. § 1692k(c) (providing defendant shall “not be held liable” where
19
“violation was not intentional and resulted from a bona fide error notwithstanding the
20
maintenance of procedures reasonably adapted to avoid any such error”); Cal. Civ. Code §
21
1788.30(e) (providing defendant has “no civil liability” where “violation was not intentional
22
and resulted notwithstanding the maintenance of procedures reasonably adapted to avoid
23
any such violation”), and, as Ditlevson correctly observes, Legal Express has failed to
24
allege any facts in support of the defense or to otherwise provide fair notice of the basis
25
therefor. See Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (holding “key to
26
determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair
27
notice of the defense”; finding statute of limitations adequately pleaded as defense, where
28
conclusory statement thereof was supported by “attached memorandum” identifying
2
1
specific provision on which defendant relied); see also Shechter v. Comptroller, 79 F.3d
2
265, 270 (2nd Cir. 1996) (holding “defenses which amount to nothing more than mere
3
conclusions of law and are not warranted by any asserted facts have no efficacy”) (internal
4
quotation and citation omitted). Nonetheless, as it does not appear Legal Express would
5
be unable to provide fair notice of the basis for its Third Affirmative Defense, to state, for
6
example, the procedures it allegedly has adopted to avoid violations of the nature here
7
alleged, the Court will afford Legal Express leave to amend its answer to do so.
8
9
In the Fourth Affirmative Defense, Legal Express alleges the claims are “barred by
the litigation privilege embodied either in California Civil Code § 47(b) or under state and
10
federal common law.” (See Def.’s Answer ¶ 104.) Ditlevson argues that the litigation
11
privilege is not a cognizable defense to the claims alleged herein. The Court agrees. First,
12
under state law, the California Court of Appeal has held the litigation privilege is not a
13
defense to a claim under the RFDCPA, see Komarova v. National Credit Acceptance, Inc.,
14
175 Cal. App. 4th 324, 338-40 (2009) (holding § 47(b), which sets forth privilege for
15
communications in judicial proceedings, provides no defense to claims brought under
16
RFDCPA; noting to hold otherwise “would effectively immunize conduct that the Act
17
prohibits”) (internal quotation and citation omitted), and Legal Express has not argued, let
18
alone shown, the California Supreme Court would rule to the contrary, see Klingebiel v.
19
Lockheed Aircraft Corp., 494 F.2d 345, 346 n. 2 (9th Cir. 1974) (holding “[d]ecisions of the
20
California Courts of Appeal are to be followed by a federal court where the Supreme Court
21
of California has not spoken on the question, in the absence of convincing evidence that
22
the highest court of the state would decide differently”). Second, under federal law, the
23
“Noerr-Pennington doctrine,” which requires federal statutes be construed to “avoid
24
burdening conduct that implicates the protections afforded by the [First Amendment’s]
25
Petition Clause,” is not a defense to an FDCPA claim, at least where the claim is based on
26
the defendant’s having made false statements in connection with a court proceeding. See
27
Hartman v. Great Seneca Financial Corp., 569 F.3d 606, 615-16 (6th Cir. 2009) (holding
28
defense under Noerr-Pennington not available where FDCPA claim based on defendant’s
3
1
allegedly having submitted falsified exhibit to state court); Sial v. Unifund CCR Partners,
2
2008 WL 4079281, at *3-4 (S.D. Cal. August 28, 2008) (holding Noerr-Pennington doctrine
3
did not bar claim based on defendant’s having “submitted false statements in support of [a]
4
request for default judgment”).
CONCLUSION
5
6
For the reasons stated above, Ditlevson’s motion to strike Legal Express’ affirmative
7
defenses is hereby GRANTED. If Legal Express wishes to amend its answer to cure the
8
deficiencies identified above with respect to the Third Affirmative Defense, it shall file an
9
amended answer no later than December 18, 2015.
10
IT IS SO ORDERED.
11
12
Dated: November 24, 2015
MAXINE M. CHESNEY
United States District Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?