Anastasion v. Credit Service of Logan et al

Filing 225

MEMORANDUM DECISION and Ordergranting in part and denying in part 202 Plaintiff's Motion in Limine Regarding Mitigation of Damages. Signed by Judge Ted Stewart on 10/17/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

AMY ANASTASION,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION IN LIMINE REGARDING
MITIGATION OF DAMAGES

vs.

CREDIT SERVICE OF LOGAN, INC. dba
ALLIED COLLECTION SERVICE,
BRITTANY APARTMENTS, L.L.C., and
DOES 1-10,

Case No. 2:08-CV-180 TS

Defendants.

This matter is before the Court on Plaintiff’s Motion in Limine Regarding Mitigation of
Damages.1 For the reasons set forth below, the Court will grant in part and deny in part
Plaintiff’s Motion.
Plaintiff filed the present Motion on October 11, 2011. In her Motion, Plaintiff requests
that the Court prohibit Defendant from presenting any evidence attempting to limit its liability on
the basis of Plaintiff’s failure to mitigate damages “in relation to her claim for statutory damages,

1

Docket No. 202.
1

the Defendant’s intentional conduct, or the Plaintiff’s actual damages for emotional distress.”2
Defendant agrees that a mitigation of damages defense is invalid with respect to a statutory
damages claim under the Fair Debt Collection Practices Act (“FDCPA”). The Court will
therefore grant Plaintiff’s Motion with respect to statutory damages.
With respect to mitigation of damages on the remaining claims, it is unclear what
Plaintiff is requesting in her Motion. To the extent that Plaintiff’s Motion could be construed as
a motion for summary judgment on the issue of Defendant’s affirmative defense, it is denied as
untimely. If the Motion is interpreted as a request to find that the mitigation of damages is
irrelevant as to the remaining claims, it is denied, as it is a well accepted principle that mitigation
is required of plaintiffs when they are able to reduce the damages suffered.3 To the extent that
Plaintiff argues that there was no opportunity for her to mitigate damages, this is a factual
question that will be left for the jury. Finally, to the extent that Plaintiff’s Motion could be
construed as a request to exclude specific evidence as it does not relate to Plaintiff’s actual ability
to mitigate, the request is denied, as Plaintiff has not indicated any specific evidence that she
would like excluded. Plaintiff is free to raise objections to the admission of specific evidence at
trial.

2

Docket No. 202, at 1.

3

See, e.g., United States v. Brookridge Farm, 111 F.2d 461, 461 (10th Cir. 1940) (“The
general rule is that one who suffers injury as the result of a tort or a breach of contract is required
to exercise reasonable care and diligence to avoid the loss, or to minimize the resulting
damage.”).
2

It is therefore
ORDERED that Plaintiff’s Motion in Limine Regarding Mitigation of Damages (Docket
No. 202) is GRANTED IN PART AND DENIED IN PART.
DATED October 17, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

3