Williamceau v. Dyck-O'Neal, Inc.

Filing 24

OPINION AND ORDER granting 11 Plaintiff's Motion to Strike Affirmative Defenses. Defendant may file an Amended Answer and Affirmative Defenses as to affirmative defense four only within fourteen days of the date of this Order. Signed by Judge John E. Steele on 6/13/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ELANGE WILLIAMCEAU,
Plaintiff,
v.

Case No: 2:16-cv-855-FtM-29CM

DYCK-O’NEAL, INC.,
Defendant.

OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion to
Strike

Defendant’s

December 21, 2016.

Affirmative

Defenses

(Doc.

#11)

filed

on

Defendant filed a Response in Opposition (Doc.

#13) on February 2, 2017.

For the reasons set forth below,

Plaintiff’s Motion to Strike is granted.
I.
Elange Williamceau (Plaintiff) filed a one-count Complaint
(Doc. #2) in state court alleging violations of the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq.
Complaint

alleges

that

Dyck-O’Neal,

Inc.

(Defendant)

used

The
an

Automated Telephone Dialing System (ATDS) known as “LiveVox” to
call Plaintiff’s cell phone eighteen (18) times between November
5, 2012 and April 8, 2013, in an effort to collect on a debt, and
without her consent.

(Id. ¶¶ 12-15.)

Defendant removed the

action to this Court (Doc. #1) on November 30, 2016.

That same day, Defendant also filed an Answer (Doc. #3)
asserting four affirmative defenses: (1) lack of Article III
standing; (2) comparative fault; (3) no use of an ATDS; and (4)
prior express consent to be called.

Plaintiff now moves under

Rule 12(f) to strike these defenses on grounds that they are either
not proper “affirmative” defenses or are “wholly inadequate to
provide Plaintiff with proper notice as to what actions and conduct
give rise to such vague, conclusory defenses.”

(Doc. #11, p. 4.)

Defendant has since withdrawn its second affirmative defense (Doc.
#14) but opposes Plaintiff’s request to strike the remaining three
defenses.
II.
The Federal Rules of Civil Procedure require a defendant to
“affirmatively state any avoidance or affirmative defense.”
R. Civ. P. 8(c).

Fed.

“An affirmative defense is generally a defense

that, if established, requires judgment for the defendant even if
the

plaintiff

evidence.”
Cir.

can

prove

his

case

by

a

preponderance

of

the

Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th

1999).

“insufficient

Pursuant
defense[s]”

requesting, or sua sponte.

to

Rule

from

a

12(f),

courts

pleading

upon

may
a

strike

motion

so

Fed. R. Civ. P. 12(f).

As this Court has recently discussed on several occasions,
compliance with Rule 8(c) requires a defendant to set forth “some
facts establishing a nexus between the elements of an affirmative
defense and the allegations in the complaint,” so as to provide

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the plaintiff fair notice of the grounds upon which the defense
rests.

Pk Studios, Inc. v. R.L.R. Invs., LLC, No. 2:15-CV-389-

FTM-99CM, 2016 WL 4529323, at *2 (M.D. Fla. Aug. 30, 2016) (quoting
Daley v. Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3
(M.D. Fla. June 28, 2016)).

Boilerplate pleading – that is, merely

listing the name of the affirmative defense without providing any
supporting facts – is insufficient to satisfy Rule 8(c), because
it does not provide a plaintiff adequate grounds to rebut or
properly litigate the defense.

Grant v. Preferred Research, Inc.,

885 F.2d 795, 797 (11th Cir. 1989); Hassan v. U.S. Postal Serv.,
842 F.2d 260, 263 (11th Cir. 1988)).
III.
A.

Affirmative Defense One
Defendant’s first affirmative defense asserts that Plaintiff

lacks the requisite Article III standing to pursue her TCPA claim
because she has suffered no legally cognizable injury in fact.
Plaintiff moves to strike this defense on the ground that “injuryin-fact is not required to give rise to a plaintiff [sic] Article
III standing to bring a TCPA claim,” since statutory a violation
itself establishes standing.

(Doc. #11, p. 4.)

In response,

Defendant appears to argue that Plaintiff has alleged only a “bare
procedural violation,” which is insufficient to constitute an
injury in fact sufficient to confer standing.

(Doc. #13, p. 5.)

Lack of standing is not an affirmative defense, but rather is
a matter implicating the court’s subject matter jurisdiction over

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an action.

Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d

1229, 1242 (11th Cir. 2003).

Nonetheless, because standing “must

be addressed as a threshold matter,” id., the Court resolves the
dispute now.
U.S.

249,

See Nat'l Org. for Women, Inc. v. Scheidler, 510

255

(1994)

(“Standing

represents

a

jurisdictional

requirement which remains open to review at all stages of the
litigation.” (citation omitted)).
The Supreme Court has made clear that Article III does indeed
require a plaintiff alleging violations of a consumer protection
statute, such as the TCPA, to have suffered an injury in fact in
order to have standing to pursue such claim.
Robbins, 136 S. Ct. 1540, 1548 (2016).

Spokeo, Inc. v.

“To establish injury in

fact, a plaintiff must show that he or she suffered ‘an invasion
of

a

legally

protected

interest’

imminent,

not

‘concrete

hypothetical.’”

Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S.

concrete

conjectural

and

and

any

or

is

particularized’

555, 560 (1992)).

‘actual

that

or

“[A] bare procedural violation, divorced from

harm,

[will

requirement of Article III.”

not]

satisfy

the

injury-in-fact

Id. at 1549.

But a mere procedural violation of the TCPA is not what is
claimed here.
eighteen

By alleging Defendant autodialed her cell phone on

separate

occasions

without

her

permission,

Plaintiff

accuses Defendant of engaging in precisely the type of abusive
behavior the TCPA aims to prevent: infringement of “the substantive
right to be free from certain types of phone calls and texts absent

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consumer consent.”

Van Patten v. Vertical Fitness Grp., LLC, 847

F.3d 1037, 1043 (9th Cir. 2017); see also Florence Endocrine
Clinic, PLLC v. Arriva Med., LLC, No. 16-17483, --- F.3d ---, 2017
WL 2415966, at *2 (11th Cir. June 5, 2017) (observing that the
TCPA creates “cognizable” substantive rights).

“The violation of

a statutorily-protected substantive right, in turn, causes ‘real’
harm, as opposed to harm that is ‘hypothetical’ or ‘uncertain.’”
JWD Auto., Inc. v. DJM Advisory Grp. LLC, 218 F. Supp. 3d 1335,
1340 (M.D. Fla. 2016) (citing Church v. Accretive Health, Inc.,
654 F. App'x 990, 995 (11th Cir. 2016) (per curiam)); see also Van
Patten, 847 F.3d at 1043 (“Congress identified unsolicited contact
as a concrete harm, and gave consumers a means to redress this
harm [under the TCPA].”); cf. Florence, 2017 WL 2415966, at *2
(the occupation of a recipient’s phone line during the transmission
of a junk fax is a sufficient injury in fact to confer standing
under the TCPA); Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris,
D.D.S., P.A., 781 F.3d 1245, 1253 (11th Cir. 2015) (same).
Since “a violation of the TCPA is [itself] a concrete, de
facto injury . . . [a] plaintiff alleging a violation under the
TCPA need not allege an additional harm beyond” unsolicited calls
to the plaintiff.

Van Patten, 847 F.3d at 1043; see also Tillman

v. Ally Fin. Inc., No. 2:16-cv-313-FTM-99CM, 2016 WL 6996113, at
*4

&

n.6

(M.D.

Fla.

Nov.

30,

2016)

(observing

that

a

TCPA

“plaintiff has standing to proceed based upon the allegation[]
that he received autodialed calls” regardless of whether other

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specific harms are alleged).

Because Plaintiff’s Complaint so

alleges, 1 the Court grants Plaintiff’s request to strike.
B.

Affirmative Defense Three 2
Defendant’s third affirmative defense asserts that Defendant

never used an ATDS to call Plaintiff.

Plaintiff moves to strike

this defense on the ground that it essentially alleges a defect in
her prima facie case, rather than states a proper affirmative
defense. Plaintiff is correct that establishing use of an ATDS is
part of a prima facie TCPA case.

47 U.S.C. § 227(b)(1)(A); Gambon

v. R & F Enters., Inc., No. 6:14-CV-403-ORL-18, 2015 WL 64561, at
*4 (M.D. Fla. Jan. 5, 2015).

Plaintiff is also correct that “[a]

defense which points out a defect in the plaintiff's prima facie
case is not an affirmative defense.”

In re Rawson Food Serv.,

Inc., 846 F.2d 1343, 1349 (11th Cir. 1988).

Accordingly, the

Court will strike affirmative defense three.
C. Affirmative Defense Four
Affirmative

defense

four

alleges

that

Plaintiff

provided

prior express consent to receive ATDS calls on her cell phone.

In

moving to strike this defense, Plaintiff argues that this is a
mere denial of the Complaint’s allegations that she never consented
to receiving such calls, not a proper affirmative defense.

Unlike

1

Exhibit A to the Complaint (Doc. #2-1) contains what purports to
be a record of Defendant’s calls made to (and received by)
Plaintiff using LiveVox.
2

As Defendant has withdrawn affirmative defense two, the Court
does not herein address Plaintiff’s request to strike that defense.
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use of an ATDS, however, “[e]xpress consent is not an element of
a plaintiff's prima facie case but is an affirmative defense for
which the defendant bears the burden of proof.”
F.3d at 1044; Gambon, 2015 WL 64561, at *4.

Van Patten, 847

Nonetheless, Defendant

has pled no facts to support its boilerplate allegation of prior
express consent.

Plaintiff’s motion to strike affirmative defense

four is thus granted, with leave to amend.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Motion to Strike (Doc. #11) is GRANTED.

2.

Defendant may file an amended Answer and Affirmative

Defenses as to affirmative defense four only within fourteen days
of the date of this order.
DONE AND ORDERED at Fort Myers, Florida, 13th day of June,
2017.

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