Whelpley v. Comenity Bank
Filing
15
OPINION AND ORDER granting 4 Plaintiff's Motion to Strike Defendant's Affirmative Defenses. Defendant's affirmative defenses are stricken with leave to amend affirmative defenses two, three, and seven within FOURTEEN (14) DAYS of this Opinion and Order. Signed by Judge John E. Steele on 7/31/2018. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES
WHELPLEY,
an
individual and on behalf of
A.W., a minor,
Plaintiff,
v.
Case No:
2:18-cv-433-FtM-99MRM
COMENITY BANK,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of Plaintiff’s
Motion to Strike Defendant’s Affirmative Defenses (Doc. #4) filed
in state court on June 14, 2018.
Although directed to do so,
defendant has not filed a response (Doc. #12), and the time to do
so has expired.
For the reasons stated below, the Motion is
granted with leave to amend.
I.
Plaintiff James Whelpley initiated this action by filing a
four-count Complaint (Doc. #2) in state court before it was removed
to this Court (Doc. #1) by defendant on June 18, 2018.
Plaintiff
alleges violations of the Florida Consumer Collection Practices Act
(FCCPA), Fla. Stat. § 559.55, et seq., and Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, et seq.
The allegations
stem from Comenity Bank’s efforts to collect a debt plaintiff
1
incurred in connection with tuition for A.W.’s attendance at Sylvan
Learning Center.
damages,
(Id., ¶ 23.)
including
mental
Plaintiff seeks statutory and actual
and
emotional
suffering,
as
well
as
attorney’s fees and costs.
Defendant filed its Answer and Affirmative Defenses (Doc. #3)
on June 13, 2018 in state court, raising seven affirmative defenses
which plaintiff now moves to strike.
II.
The Federal Rules of Civil Procedure require defendants 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 can prove his case by a preponderance of the evidence.”
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).
Pursuant to Rule 12(f), courts may strike “insufficient defense[s]”
from a pleading upon a motion so requesting or sua sponte.
Fed. R.
Civ. P. 12(f).
As this Court recently discussed in some detail, affirmative
defenses
must
comply
with
two
separate
pleading
requirements.
First, the defense, as pled, must contain “some facts establishing
a nexus between the elements of an affirmative defense and the
allegations in the complaint,” so as to provide the plaintiff fair
notice of the grounds upon which the defense rests.
Daley v. Scott,
No. 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3 (M.D. Fla. June
2
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
notice sufficient to allow the plaintiff to rebut or properly
litigate the defense. 1
Id. (citing 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)).
Requiring defendants
to allege some facts linking the defense to the plaintiff’s claims
“streamlines
the
pleading
stage,
helps
the
parties
craft
more
targeted discovery requests, and reduces litigation costs.”
Id.
(citations omitted).
Second, a defendant must avoid pleading shotgun affirmative
defenses, i.e., “affirmative defenses [that] address[] the complaint
as a whole, as if each count was like every other count.”
Byrne v.
Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001), abrogated on other
grounds as recognized by, Nurse v. Sheraton Atlanta Hotel, 618 F.
App’x 987, 990 (11th Cir. 2015); see also Paylor v. Hartford Fire
Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014). Rather, each defense
must address a specific count or counts in the complaint or clearly
1
This pleading requirement does not “unfairly subject defendants to
a significant risk of waiving viable defenses for which they do not
yet have supporting facts,” since courts routinely grant filing
extensions and freely afford leave to amend pleadings. Daley, 2016
WL 3517697, at *3. Often, it is even deemed sufficient “notice" to
raise the affirmative defense in a dispositive motion or in the
pretrial statement or order. Id.
3
indicate that (and aver how) the defense applies to all claims.
See
Byrne, 261 F.3d at 1129; see also Lee v. Habashy, No. 6:09–cv–671–
Orl–28GJK,
2009
WL
3490858,
at
*4
(M.D.
Fla.
Oct.
27,
2009).
District courts have a sua sponte obligation to identify shotgun
affirmative defenses and strike them, with leave to replead.
Paylor,
748
F.3d
at
1127;
Morrison
v.
Executive
See
Aircraft
Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla. 2005).
III.
A.
First Affirmative Defense (Standing)
Defendant’s first affirmative defense asserts “that Plaintiff
lacks standing as he/she has suffered no injury-in-fact as a result
of any act or omission by Defendants.”
(Doc. #3, p. 5.)
Plaintiff
contends that the defense is a “mere denial” of “Plaintiff’s suffered
damages.”
(Doc. #4, p. 3.)
As this Court has recently stated,
Lack of standing is not an affirmative defense, but rather
is a matter implicating the court’s subject matter
jurisdiction over 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. See Nat’l Org. for Women, Inc. v. Scheidler, 510
U.S.
249,
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. Spokeo, Inc. v. Robbins, 136 S. Ct.
1540, 1548 (2016).
“To establish injury in fact, a
4
plaintiff must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural
or hypothetical.’”
Id. (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). “[A] bare procedural
violation, divorced from any concrete harm, [will not]
satisfy the injury-in-fact requirement of Article III.”
Id. at 1549.
Williamceau v. Dyck-O’Neal, Inc., No: 2:16-cv-855-FtM-29CM, 2017 WL
2544872, *2 (M.D. Fla. June 13, 2017).
A mere procedural violation of the TCPA or FCCPA, is not what
is alleged here.
Plaintiff asserts that defendant used an automated
voice system to place numerous calls to plaintiff’s cell phone in
violation of the TCPA (Doc. #2, ¶¶ 14, 19), and contacted plaintiff
multiple times in violation of the FCCPA (Id., ¶¶ 27, 34, 41.) These
Acts create “‘cognizable’ substantive rights.”
See Williamceau,
2017 WL 2544872 at *2 (citing Florence Endocrine Clinic, PLLC v.
Arriva Med., LLC, 858 F.3d 1362, 1366 (11th Cir. 2017)).
“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.”
Williamceau, 2017 WL 2544872 at *2 (quoting Van Patten v. Vertical
Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017)).
Plaintiff
has alleged statutory violations that, taken as true, would entitle
him to relief.
Therefore, the Court grants plaintiff’s request to
strike the first affirmative defense.
5
B.
Second Affirmative Defense (Bona Fide Error)
The second affirmative defense recites Fla. Stat. § 559.77(3),
stating: “any violation of state law was unintentional and the result
of a bona fide error, notwithstanding reasonable procedures in place
to prevent such errors.”
simply
parrots
1692k(c).
the
“bona
(Doc. #3, p. 5.)
fide
error”
Coemnity Bank’s Answer
language
of
15
U.S.C.
§
“Such a defense, which does not provide any information
connecting it to plaintiff’s claims, is precisely the type of barebones conclusory allegation” that is insufficient under Rule 8(c).
Bartholomew v. Pollack & Rosen, P.A., No. 2:15-CV-135-FTM-29, 2015
WL 3852944, at *2 (M.D. Fla. June 22, 2015) (striking boilerplate
bona fide error defense); Schmidt v. Synergentic Commc’ns, Inc., No.
2:14-CV-539-FTM-29CM, 2015 WL 997828, at *2 (M.D. Fla. Mar. 5, 2015)
(same).
Therefore, the affirmative defense will be stricken, with
leave to amend.
C.
Third Affirmative Defense (Set-Off)
Defendant’s third affirmative defense alleges “entitle[ment]
to a set-off from any recovery made by the Plaintiff of the debt(s)
which the Debtor/Plaintiff has admitted is owed to Defendant.” (Doc.
#3, p. 5.)
Plaintiff claims that defendant’s third affirmative
defense is due to be stricken because allowing a creditor who has
violated the FCCPA to receive a set off “has been consistently
rejected by courts a[s] contravening the very purpose of consumer
protection statutes like the FCCPA . . . .”
6
(Doc. #4, p. 6.)
In
support, plaintiff cites In re Runyan, 530 B.R. 801 (M.D. Fla. 2015)
and Brook v. Chase Bank USA, N.A., 566 F. App’x 787 (11th Cir. 2014).
In Runyan, the bankruptcy court held that based on the statutory
intention of the FCCPA, a set off of debt by statutorily-awarded
damages was impermissible because it would undermine the goal of the
consumer protection statute. 530 B.R. at 808-09. The court reasoned
that merely reducing the amount of debt violating creditors will be
able to recover precludes the statute’s intended deterrent effect
on unlawful debt collection practices.
Id.
In Brook, the Eleventh
Circuit found that it was within the bankruptcy court’s sound
discretion to refuse to reduce statutory damages and attorney’s fees
awarded under the FCCPA by the amount of debt owed because it would
undermine the purpose of the FCCPA.
566 F. App’x 787.
The Eleventh
Circuit has not reached the specific question of whether set off is
a proper affirmative defense in FDCPA and FCCPA cases.
The Court will allow the affirmative defense to proceed at this
point but does not reach a decision on whether defendant will be
allowed to assert the affirmative defense during the trial of this
matter.
Nevertheless, defendant has pled no facts to support its
boilerplate
allegations
of
set
off.
Thus,
defendant’s
third
affirmative defense will be stricken, with leave to amend.
D.
Fourth Affirmative Defense (Arbitration)
The
fourth
affirmative
defense
states,
in
its
entirety:
“Defendant asserts that Plaintiff’s claims may be subject to a
7
mandatory arbitration provision[.]”
(Doc. #3, p. 5.)
This is not
a proper affirmative defense but is more akin to a denial of
plaintiff’s right to proceed with the litigation of this case.
Defendant’s fourth affirmative defense is therefore stricken.
See
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999) (“An
affirmative defense is generally a defense that, if established,
requires judgment for the defendant even if the plaintiff can prove
his case by a preponderance of the evidence.”).
E.
Fifth Affirmative Defense (Impact Rule)
Defendant’s
fifth
affirmative
defense
states:
“Plaintiff’s
claims for non-economic damages are barred by the impact rule as
Plaintiff has not alleged any physical impact or injury.”
p. 5.)
(Doc. #3,
Plaintiff argues that the affirmative defense should be
stricken because
it
is
a
mere
denial
plaintiff suffered actual damages.
of
the
allegations
that
The Court agrees and will strike
it as a denial.
F.
Sixth Affirmative Defense (Jury Trial Waiver)
Defendant’s sixth affirmative defense states “that Plaintiff’s
claims are subject to a jury trial wavier contained in the credit
agreement(s) binding upon the parties.”
(Doc. #3, p. 6.)
The Court
agrees with plaintiff that this does not assert any avoidance of
liability
and
therefore
not
a
proper
affirmative
defense.
Accordingly, defendant’s sixth affirmative will be stricken.
8
G.
Seventh Affirmative Defense (Consent)
Defendant’s seventh affirmative defense alleges “that Plaintiff
provided his/her prior express consent to be called on his/her
cellular telephone.”
Plaintiff asserts that “any perceived consent
was revoked by written letters . . . .”
(Doc. #4, p. 9.)
this
is
may
be
true,
“[e]xpress
consent
not
an
Although
element
of
a
plaintiff’s prima facie case [under the TCPA] but is an affirmative
defense
for
which
the
defendant
bears
the
burden
of
proof.”
Williamceau, 2017 WL 2544872, at *3 (quoting Van Patten, 847 F.3d
at 1044).
Nevertheless, defendant has pled no facts to support its
boilerplate allegation of prior express consent.
(Doc. #3, p. 6.)
Thus, defendant’s seventh affirmative defense will be stricken, with
leave to amend.
Accordingly, it is hereby
ORDERED:
Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses
is GRANTED and defendant’s affirmative defenses (Doc. #3) are
stricken with leave to amend affirmative defenses two, three, and
seven within FOURTEEN (14) DAYS of this Opinion and Order.
9
DONE and ORDERED at Fort Myers, Florida, this
July, 2018.
Copies:
Parties of Record
10
31st
day of
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