Fisk v. ARS National Services, Inc.
Filing
16
DECISION AND ORDER granting in part and denying in part Plaintiff's 8 Motion to Strike. Signed by Senior Judge Thomas J. McAvoy on 8/7/2012. (amt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------BERNADENE M. FISK,
Plaintiff,
v.
1:12-cv-478
ARS NATIONAL SERVICES, INC.,
Defendant.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff Bernadene Fisk commenced the instant action against Defendant ARS
National Services, Inc. asserting violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq. The claimed violations include: (a) contacting a
consumer known to be represented by an attorney; (b) contacting a consumer’s place of
employment when the debt collector knows, or has reason to know, that the consumer’s
employer prohibits the consumer from receiving such communications; (c) contacting third
parties without prior consent from the consumer for an improper purpose; (d) engaging in
harassing, oppressive and/or abusive conduct; (e) using obscene language; (f) causing a
consumer’s telephone to ring, or to continuously annoy, abuse, or harass a consumer; and
(g) using unconscionable means to collect a debt. In response to the Complaint, Defendant
filed an Answer asserting numerous affirmative defenses. Plaintiff now moves to strike the
third, fourth, fifth, sixth, and seventh affirmative defenses. Defendant has failed to timely
oppose the motion.
I.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(f), a court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter. Fed. R. Civ. P. 12(f). Motions to strike affirmative defenses are generally disfavored.
See, e.g., MTA Metro North R.R. v. Buchanan Marine, No., 3:05-CV-881, 2006 WL 3544936,
*3 (D.Conn. Dec. 8, 2006) (citing William Z. Salcer, Panfeld, Edelman v. Envicon Equities,
744 F.2d 935, 938-39 (2d Cir. 1984), vacated on other grounds, 478 U .S. 1015 (1986)).
Courts use a three-part analysis in determining whether to grant a motion to strike an
affirmative defense. The moving party must demonstrate that: (1) there is no question of fact
which might allow the defense to succeed; (2) there is no question of law which might allow
the defense to succeed; and (3) the plaintiff would be prejudiced by inclusion of the defense.
Varga v. Rent-A-Center East, Inc., 2012 WL 2178866, at *1 (N.D.N.Y. 2012).
II.
DISCUSSION
a.
Third Affirmative Defense - Statute of Limitations
Plaintiff moves to strike Defendants’ statute of limitations defense on the ground
that the applicable statute of limitations is one year, 15 U.S.C. § 1692k(d), the conduct
occurred from October 2010 until September 2011, and Plaintiff filed her Complaint on March
16, 2012, within the one year statute of limitations. While some of Plaintiff’s conduct is
clearly within the statute of limitations period, other conduct may fall outside of the limitations
period (i.e. conduct prior to March 16, 2011). Because many courts have rejected application
of the continuing violation doctrine to claims under the FDCPA, see Egbarin v. Lewis, Lewis
& Ferraro LLC, 2006 WL 236846, at *9 (D. Conn. 2006) (citing cases), it cannot said that
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Defendants’ statute of limitations defense cannot succeed (at least in part). Accordingly, the
motion to dismiss this defense is DENIED.
b.
Fourth Affirmative Defense - Right to Set-Off
Plaintiff moves to strike the Fourth Affirmative Defense on the ground that it does
not give Plaintiff sufficient notice of the basis for the defense. The Fourth Affirmative
Defense states “[p]laintiffs’ claims are, or may be, barred or diminished by Defendant’s right
to setoff and/or recoupment arising from defaults, deficiencies or otherwise.” There are
insufficient allegations in the pleadings suggesting a legal or factual basis for any such
defense. In addition, attempting to defend against such an ambiguous defense could be
prejudicial to Plaintiff. Moreover, as noted, Defendants has not responded to the motion to
articulate a legitimate basis for the defense. Accordingly, the Fourth Affirmative Defense is
hereby STRICKEN.
c.
Fifth Affirmative Defense - Respondeat Superior Limitation
Plaintiff moves to strike the Fifth Affirmative Defense on the ground that it is legally
insufficient. The Fifth Affirmative Defense reads as follows: “Defendant is not liable for any
actions of its agents or employees committed outside of the line and scope of their
employment.” Plaintiff does not articulate how inclusion of this defense would cause her
prejudice and, therefore, the motion to strike this defense is DENIED.
d.
Sixth Affirmative Defense - No Breach of Any Legal Duty
Plaintiff moves to strike the Sixth Affirmative defense, which claims that “Defendant
did not breach any legal duty to Plaintiff.” This defense will not be stricken because it begs
the very question at issue in this case - whether Defendant violated the FDCPA.
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e.
Seventh Affirmative Defense - Right to Assert Additional Defenses
Lastly, Plaintiff moves to strike the Seventh Affirmative Defense whereby
Defendant seeks to reserve the right to assert additional defenses of which it becomes
aware. This is not a defense at all, but an attempted reservation of rights and, therefore, will
be stricken.
III.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion is GRANTED IN PART and DENIED IN
PART. The motion is granted insofar as the Fourth and Seventh Affirmative Defenses are
hereby STRICKEN. In all other regards, Plaintiff’s motion is DENIED.
IT IS SO ORDERED.
Dated: August 7, 2012
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