Racick v. Dominion Law Associates, et al, No. 5:2010cv00066 - Document 15 (E.D.N.C. 2010)
Court Description: ORDER granting in part and denying in part 8 Motion to Strike. Plaintiffs Motion to Strike 8 is ALLOWED in part. Specifically, the following defenses asserted in the Answer are STRICKEN: Defendants' Second, Third, Fourth, Fifth, Sixth, Seven th, Eighth, Ninth, Twelfth, Thirteenth, and Fourteenth defenses. The Motion is DENIED with respect to Defendants' Sixth, Tenth and Eleventh defenses. The court, however, grants leave to Defendants to file, within fourteen (14) days of the filing date of this order, an amended answer curing the pleading defects noted herein. Signed by Senior Judge James C. Fox on 10/6/2010. Copies served. (Edwards, S.)
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Racick v. Dominion Law Associates, et al Doc. 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No.5:10-CV-66-F LOUIS RACICK, Plaintiff, v. DOMINION LAW ASSOCIATES, T. CAMILLE FRENCH, Defendants. ) ) ) ) ) ) ) ) ) ORDER This matter is before the court on Plaintiffs' Motion to Strike Defendants' Affirmative Defenses [DE-8]. I. FACTUAL AND PROCEDURAL HISTORY Plaintiff Louis Racick ("Plaintiff' or "Racick") initiated this action on February 24, 2010, alleging one claim for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Specifically, Plaintiff alleges that a non-party to this action, RAB Performance, sued a "Louis Racick" ("the Judgment Debtor") in Kings County Civil Court in New York on a VISA credit card issued by First National Bank of Marin and obtained a judgment. Plaintiff contends that he is not the "Louis Racick" who is the Judgment Debtor in the New York action. Plaintiff alleges that on June 16, 2008, Defendants filed the foreign judgment on behalf of RAB Performance against Plaintiff in Cumberland County. According to Plaintiff, a Cumberland County deputy sheriff attempted to serve the judgment on him on June 17, 2008, but ultimately declined to make service once Plaintiff showed proof that his social security number did not match that of the Judgment Debtor. Plaintiff also alleges that Defendants persisted in their attempts to collect money from Dockets.Justia.com him. He contends "[i]n or about February 2009," he attempted to refinance his house and learned that Defendants had done nothing to release the judgment. Plaintiff alleges he also applied for credit to purchase a truck, but the lender would not lend to Plaintiff in his individual capacity because of the judgment listed on his credit report. Plaintiff alleges that in March 2009 he called Defendants on different occasions to resolve the malter, but Defendant French would not call him back. He also alleges Defendant Dominion sent him a collection letter in March 2009, attempting to collect the debt that belongs to the .J udgment Debtor. Plaintiff contends he sent a letter, certified mail return receipt, to Defendant Dominion asking them to correct their error, but he received no response. More than a year after Defendants filed the notice of foreign judgment, Plaintiff retained an attorney to contest the judgment in Cumberland County. Plaintiff contends that after his counsel liled a motion on his behaIt~ Defendants called Plaintiff to discuss the case. He contends that Defendants actcd surprised to hear he had an attorney, despite having notice of the motions tiled in the case. Eventually, Plaintiffs attorney moved to vacate the judgment, and the uncontested motion was allowed by the presiding state court judge on November 24,2009, and the foreign judgment was stricken from the docket. In th(; complaint, Plaintiff contends he is entitled to statutory damages, costs and attorney Ices. as well as actual damages because of the "financial issues when he tricd to refinance his house, anxiety, anger, frustration, emotional distress, inconvenience, missed work, attorney's tees. and litigation expenses incurred in defending himself against the unlawfully placed judgment.'· Compi. [DE-I] ~ 59. 2 Defendants filed their answer on April 9, 2010, and asserted thirteen affirmative defenses in their answer. The first affirmative defense consisted of the Defendants' detailed responses to each of Plaintiff's allegations in the complaint. The remainder of the affirmative defenses are as lollows: SECOND DEFENSE The Complaint fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. THIRD DEFENSE The plaintiffs claims are barred under the applicable statutes of limitations and the same is pled as an absolute bar to the plaintiffs recovery. FOURTH DEFENSE Any violation of law by defendants, which is specifically denied, was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error. FIFTH DEFENSE Even if the Court should tind that defendant committed the FDCPA violation alleged by plaintiff in his Complaint, which is denied, said violation was de minimis and is not the type of violation for which the purpose and intent of the FDCPA was proscribed. SIXTH DEFENSE To the extent plaintiff is entitled to damages, which defendants deny, the plaintiffs recovery is limited to statutory limitations set forth in 15 U.S.C. § 1692[./ SEVENTH DEFENSE 11' plaintiff was injured or damaged, any and all such injury was a proximate result of the intervening and/or superseding acts and/or omissions of persons and/or entities not under the control of defendants. EIGHTH DEFENSE If plainti ff was injured or damaged, any and all injury or damage was as a proximate result of circumstances beyond the control of defendants. NINTH DEFENSE lf plaintiff was injured or damaged, any and all such injury or damage was as a proximate result of the acts and/or omissions of persons and/or entities not under the control of defendants. TENTH DEFENSE 1L in fact, defendants performed any wrongful acts, which is specifically denied, such acts were not performed knowingly, purposefully, with malicious purpose, in bad faith, intentionally, recklessly, willfully, or wantonly. 3 ELEVENTH DEFENSE At all pertinent times, defendants acted in compliance with the Federal Trade Commission regulations, Federal Trade Commission stafr commentary and letter commentaries, and/or Federal Trade Commission advisory opinions. TWELFTH DEFENSE Plaintiffs claims are barred by the doctrines of laches, waiver, and/or estoppel. THIRTEENTH DEFENSE Plaintiff failed to mitigate his damages. FOURTEENTH DEFENSE Defendants may specifically reserve their right to assert such other and affirmative defenses as the same may arise. I\ns\vcr rDE-5] at pp. 9-10. On April 30, 2010, Plaintiff filed a motion to strike affirmative defenses pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. Plaintiff directly challenges nine of the affirmative defenses asserted by defendants, while also suggesting that the remaining defenses are deficient as well. Specifically, Plaintiff suggests that the plausibility standard set forth in Bell Atlantic Corp. v. Twombly. 550 U.S. 544 (2007) and Ashcrofi v. Iqbal, 556 U.S. _~, 129 S.Ct. 1937 (2009) should apply to affirmative defenses under Rule 8(c) of the Federal Rules of Civil Procedure, and contends that all of the affirmative defenses asserted by Defendants "contain no facts whereby plaintiff cannot conceivably be put on notice as to the factual and legal basis for the purported defenses." Mem. in Support IDE-9] at p. 2. Additionally, Plaintiff argues that specific defenses are fl'ivolous or legally insufficient. 4 Defendants, in response, contend that the plausibility standard enunciated in Twombly and Iqbal do not apply to affirmative defenses. Defendants also proffer offer reasons why some 0[' their affirmative defenses are neither frivolous or legally insufficient. II. STANDARD OF REVIEW Rule 12( 1) of the Federal Rules of Civil Procedure provides, in pertinent part. that a "court may strike from a pleading an insufficient defense ... ," FED. R. CIv. P. 12(f). "A delCnse is insufficient 'ifit is clearly invalid as a matter oflaw.' ., Spell v. McDaniel. 591 F. Supp. 1090, 1112 (E.D.N.C. I 984)(quoting Anchor Hocking Corp. v. Jacksonville £lec. Authority, 419 F.Supp. 992, 1000 (M.D.Fla. 1976)). When reviewing a motion to strike, "the court must view the pleading under attack in a light most favorable to the pleader." Clark v. .\lilam, 152 F.R.D. 66, 71 (S.D.W.Va. 1993). The Fourth Circuit has cautioned that "Rule 12(1) motions are generally viewed with disfavor 'because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.' " Waste Mgmt. Holdings Inc. v. Gilmore, 252 FJd 316. 347 (4th Cir. 2001)(quoting 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, F"DERAL PRACTICE & PROCEDURE § 1380 (2d ed. 1990)). Regardless, if a movant can show that a dcICnse clearly is insufficient. the court should grant the motion to strike. See Spell, 591 F.Supp. at 1112. Given the disfavored status of Rule 12 (f) motions to strike defenses, however, a defendant normally is allowed leave to amend the answer. Banks v. Realty Mgmt. Servo Inc., No.1 :10-CV-14, 2010 WL 420037, at * 1 (E.D.Va. Jan. 29, 2010)(citing 5C WRIGHT & MILLER § 13 g 1). 5 III. ANALYSIS A. Pleading Requirements for Affirmative Defenses PlaintitT contends Defendants "have failed to provide any factual underpinnings of their affirmative defenses and instead only provide conclusory and improper defenses." Mem. in Support [DE-9] at p. 4. He implicitly suggests the pleading requirements for complaints, as set forth in Twombly and Iqbal, apply equally to affirmative defenses in answers. Id. ("[T]he pleader must always provide sufficient information to allow the receiving party fair notice. This must include the 'who, what, where, and when' that underlie the pleading."). Defendants, on the other hand. maintain the plausibility standard set forth in Ashcroft and Iqbal (which they refer to as a heightened pleading standard) does not extend to affirmative defenses. 1. Twombly and Iqbal cases In Twombly, the Supreme Court explained that to prevail against a motion to dismiss, a plaintilT must plead sufficient facts to "state a claim to relief that is plausible on its face." 550 LJ .S. at 570. Under this plausibility standard, a complaint need not contain "detailed factual al legations"-but it must contain "more than labels and conclusions" or a "formulaic recitation of the clements ora cause of action." Id. at 555. In Iqbal. the Supreme Court further explained the process a district court should use when reviewing a motion to dismiss a claim under Rule 12(b)(6). First, a court should "identify pleadings that. because they are no more than conclusions, are not entitled to the assumption of truth." f~1Ctual 129 S.Ct. at 1950. Second, a court should the "assume the veracity" of any well-pleaded allegations, and "then determine whether they plausibly give rise to an entitlement to relief" Jd. "The plausibility standard is not asking to a 'probability requirement: but it asks for 6 morc than a sheer possibility that defendant has acted unlawfully." Id. (quoting Twombly, 440 l,J.S. at 556.). The Court also explained: "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. 2. Application of Twombly and Iqbal to affirmative defense Neither the Fourth Circuit Court of Appeals, nor any other circuit court of appeals, has addressed whether Twombly and Iqbal should be interpreted as applying to affirmative defenses. There is a split of authority among the district courts to address the question. The majority of the district courts-including every district court within the Fourth Circuit to have considered the issue-have concluded that the plausibility standard articulated in Twombly and Iqbal applies to the pleading of affirmative defenses. See. e.g., Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 WL 2990159 at **7-8 (E.D.Va. July 29. 2010)(collecting cases)l; Bradshaw v. Hi/co The Eastern District of Virginia noted that in the following cases district courts hewed to the majority view: rocal165 v. DEMIEXGroup Inc., No. 09-1356, 2010 WL 97181 L at *2 (C.D.Ill. Mar. 1 L 2010); OSF Healthcare Sys. v. Banno, No. 08-1096, 2010 WL 431963, at *2 (C.D.Il!. .Ian. 29, 2010); Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647. 649-50 (D.Kan.2009); Tara Prods.. Inc. v. Hollywood Gadgets, Inc., No. 09-61436-CIV, 2009 WL 4800542, at * 1 (S.D.Fla. Dec. 11, 2009) (finding that defendants must provide fair notice of affirmative defenses and the grounds on which they rest); Burget v. Capital W Sec., /nc .. No. CIV-09-1015-M, 2009 WL 4807619, at *2 (W.D.Okla. Dec. 8,2009); Banko! A/on/real v. SK Foods, LLC, No. 09 C 3479, 2009 WL 3824668, at *2 (N.O.IIl. Nov. 13, 2(09) (holding that affirmative defenses must meet pleading standards set forth in Rules 8 and 9); Tracy v. NVR, Inc., No. 04- CV-6541 L, 2009 WL 3153150, at *7 (W.D .N.Y. Sept. 30, 2009); GreenheckFan Corp. v. Loren Cook Co., No. 08-cv-335-jps, 2008 WL 4443805, at *1-2 (W.D.Wis. Sept. 25,2008); In re Mission Bay Ski & Bike, Inc., Nos. 07 B 20870, 08 A 55, 2009 WL 2913438, at *6 (Bankr.N.D.IlI. Sept. 9, 2009); Kaufmann v. Prudential Ins. Co. orAm., No. 09-10239-RGS, 2009 WL 2449872, at *1 . . (D.Mass. Aug. 6, 2009) (court inclined to think that defendants have the same Rule 8 obligations as do plaintiffs); Shinew v. Wszola, No. 08-14256, 2009 WL 1076279, at *3 1 7 Receivables, LLC _ F. Supp.2d _,2010 WL 2948181 at *3 (D.Md. July 27, 2010); Palmer v. Oak/and Farms, Inc., No. 5:10cv00029, 2010 WL 2605179 at *5 (W.D.Ya. June 24, 2010). The n:asoning cited by these courts typically is two-fold. First, the courts recognize that what is good for the goose is good for the gander, and reason that "it makes neither sense nor is it fair to require a plaintiff to provide the defendant with enough notice that there is a plausible, factual basis for her elaim under one pleading standard and then permit a defendant under another pleading standard simply to suggest that some defense may possibly apply in the case." Palmer, 2010 WL 2605 I79 at *4. Second, the courts note that "[b]oilerplatc defenses clutter the docket and ... create unnecessary work" and extended discovery. Safeeo, 2008 WL 2558015 at *1. A minority of courts have refused to extend the plausibility standard to the pleading of anirmative defenses. See Francisco, 2010 WL 2990159 at *6 n.4 (collecting cases)." These (1~.D.Mich. Apr. 21,2009); Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F.Supp.2d 620,623 (S.D.N.V.2008) ("Mere conelusory assertions are not sufficient to give plaintiffs notice of the counterclaims and defenses and, thus, do not meet Rule 8(a)'s pleading standards."); Stoffels ex reI. SBC Tel. Concession Plan v. SEC Commc'ns, Inc., No. 05-CY-0233-WWJ, 2008 WL 4391396, at *1 (W.n.Tex. Sept. 22, 2008); .)'a/eco Ins. Co. alAmo v. O'Hara Corp., No. 08-CY-I0545, 2008 WL 2558015, at * 1 (E.D. Mich. June 25, 2008); Holtzman v. 13/£ Aerospace, Inc., No. 07-80551-CIY, 200S WL 2225668, at *2 (S.D.Fla. May 29,2008); Uniled Slales v. Quadrini, No. 2:07 CV -13227,2007 WL 4303213, at *3-4 (E.D.Mich. Dec. 6,2007); Home Mgmt. SoluIions, Inc. v. Prescient, Inc., No. 07-20608, 2007 WL 2412834, at *3 (S.D.Fla. Aug. 21, 2007). Francisco, 20] 0 WL 20000159 at *6 n.3. Sinee the decision in Francisco, at least other court has joined the majority view. See Castillo v. Roche Laboratories, Inc., No. ]0-20876 CIV, 2010 WL 3027726 (S.D.Fla. Aug. 2, 2010). The Francisco court cited the following cases as declining to extend the plausibility standard to affirmative defenses: 2 Amerislar Fence Prods.. Inc. V. Phoenix Fence Co., No. CV-I0-299-PHXDGC, 20 10 WL 2803907, at *1 (D.Ariz. July 15, 2010); McLemore V. Regions Bank, Nos. 3:08cv0021, 3:08cvl003, 2010 WL 1010092, at *13 (M.D.Term. Mar. 18, 8 courts reason that Twombly and Iqbal addressed only Rule 8(a)3 of the Federal Rules of Civil Procedure, and neither Rule 8(b)4 nor Rule 8( C)5 contain the same language. See First National Insurance, 2009 WL 22861 at *2. Additionally, courts have noted that it may be unfair to require a defendant, who has only 21 days to respond to a complaint, to adhere to the same pleading standard as a plaintiff who often enjoys significantly greater time to develop factual support for claims. ,)'ee Palmer, 201 OWL 2605179 at *4. This court, however, agrees with the district courts within the Fourth Circuit that have consid~red the question and concludes that "the considerations or fairness, common sense and litigation c1Ticiency underlying Twombly and Iqbal" mandate that the same pleading rcquirements apply equally to complaints and affirmative defenses. Id. at *5. See also Fl'Cll1cisco, 20 I0 WL 2990159 at * 7 ("[T]he purpose of pleading requirements is to provide enough notice to the opposing party that indeed there is some plausible, factual basis for the 20 I0); Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB, 20 I0 WL 865380, at *2 (D.Colo. Mar. 8,2010); Charleswell v. Chase Manhattan Bank, N.A., No. 01-119,2009 WL 4981730, at *4 (D.V.I. Dec. 8,2009); Romantine v. CH2M Hill Eng'rs, Inc., No. 09-973,2009 WI. 3417469, at * I (W.D.Pa. Oct. 23, 2009); First Nat'l Ins. Co. qfAm. v. Camps Servs., Ltd., No. 08-cv-12805, 2009 WL 22861, at *2 (E.D.Mich. Jan. 5,2009); Westbrook v. Paragon Sys., Inc., No. 07-0714-WS-C, 2007 U.S. Dist. LEXIS 88490, at *2 (S.D. Ala. Nov. 29, 2007). Francisco, 2010 WL 2990159 at *6 0.4. Rule 8(a)(2) mandates that "[a] pleading that states a claim for relief must contain a short and plain statement of the claim that showing that the pleader is entitled to relief." 3 4 Rule 8(b)(l)(A) requires a defendant's answer to "state in short and plain terms its c.kfcnse to each claim asserted against it." 5 Rule 8(c) requires parties to "a11irmatively state any ... affirmative defense." 9 assertion and not simply a suggestion of possibility that it may apply to the case. An even handed standard as related to pleadings ensures that the affirmative defenses supply enough information to explain the parameters of and basis for an affirmative defense such that the advcrsc party an reasonably tailor discovery.")(intemal quotations and citations omitted, alteration in original). The court also notes that applying the same pleading requirements to defendants should not stymie the presentation of a vigorous defense, because under Rule 15(a) of the Fcdcral Rules of Civil Procedure, a defendant may seek leave to amend its answers to assert delCnses based on facts that become known during discovery. B. Challenged Affirmative Defenses Accordingly, the court will now tum to the affirmative defenses asserted by Defendants to determine if they have been pleaded in manner that is "intelligible, gives fair notice, and is plausibly suggested by the facts." Palmer, 2010 WL 2605179 at *5. "At a minimum, the facts asserted in an affirmative defense, and the reasonable inferences that may be drawn from those facts. must plausibly suggest a cognizable defense." Topline Solutions, Inc. v. Sandler "));.'1., Inc., Civ. No. L-09-31 02,2010 WL 2998836 at * 1 (D.Md. July 27, 2010). 1. Second Affirmative Defense of Failure to State a Claim Defendants' second affirmative defense states: "The Complaint fails to state a claim upon \\hich relief can be granted and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure." Answer [DE-5 J at p. 9. Other courts that have applied the plausibility standard to pleading to affirmative defenses have ruled that such a conclusory defense must be stricken. See Castillo, 2010 WL 3027726 at *4 (ruling that a defense contending "Plaintiff's Complaint fails, in whole or in part, to state a claim upon which relief may be granted" is 10 "insu11icient as it is no more than the a recitation of the standard for dismissal under Rule 12(h)(6) and fails to notify Plaintiffofthe deficiencies in the Complaint"); Topline, 2010 WL 2998836 at ** 1-2 (striking the affirmative defense "It]he Complaint fails to state a claim upon \\hich relief can be granted" because it contained no facts and was "too conclusory to provide ['air notice of the grounds on which" it stood), Accordingly, Defendants' second affirmative defense is stricken, with leave to amend to provide the requisite factual particularity, 2. Third Affirmative Defense of Statute of Limitations Defendants' third affirmative asserts: "The plaintiff s claims are barred under the applicable statute oflimitations and the same is pled as an absolute bar to the plaintiff's recovery."" Answer lDE-5] at p. 9. Again, courts have stricken similarly-worded affirmative dclcl1sCS lor railure to reference the specific statute and relevant time periods. c)'ee, e.g., Topline, 2010 WL 2998836 at *2; Hayne, 263 F.R.D. at 651 (explaining that "a defense of limitations might be asserted by alleging the number of years between the accrual of the claim and the commencement of the action" so that the pleader can show "some valid premise for asserting the dclcnsc and is not merely tossing it into the case likc a fish hook without bait"). Defendants' third affirmative defense, theretore, is stricken. The court notes that Plaintiff appears to argue that the statute of limitations defense cannot apply, as a matter of law, because Defendants have admitted that certain actions took place within the one-year statute of limitations applicable to the FDCPA. See 15 U.S.c. § 16C)2(d). As Defendants note, however, Plaintiff does include allegations concerning actions that 11 occurred, or may have occurred, outside the statute of limitations. Therefore, Defendants are givcn leave to amend their answer to provide the requisite factual particularity.6 3. Fourth Affirmative Defense of Bona fide error Defendants' fourth affirmative defense contends: "Any violation oflaw by defendants, which is specifically denied, was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." Answer [DE-51 at p. 9. Defendants have essentially copied the language in 15 U.S.c. § 1692k(c), but have not provided any notice of the specific error upon which it relies to assert the cklCnsc. Consequently, Defendants' fourth affirmative defense is stricken with leave to amend to cure this pleading deficiency. See Bradshaw, _ F.Supp.2d at _,2010 WL 294818 at *4. Of course. any attempt to replead the affirmative defense of bona fide error must be in accordance with the Supreme Court's recent ruling that the defense does not apply "to a violation resulting i]'om a debt collector's mistaken interpretation of the legal requirements of the FDCP A." Jerman l' ('ur/is!e. Me/v'ellie, Rini, Kramer & Ulrich LPA, __ U.S. _ _. 130 S.Ct. 1605, 1608 (2010). 4. Fifth Affirmative Defense De minimis violation Defendants assert, as their tifth affirmative defense: "Even if the Court should find that ddcndant committed the FDCPA violation alleged by the plaintiff in his Complaint, which is denied. said violation was de minimis and is not the type of violation for which the purpose and intent orthc FDCPA was proscribed." Answer [DE-5] at p. 9. 6 Given the brevity of the parties' briefing on this particular affirmative dcfense, the court is no! reaching the question of whether any portion of the Plaintiff's FDCPA claim is barred by the statute of limitations. 12 Plaintiff argues this defense must be stricken because the FDCPA is a strict liability statute, and "[a]bsent the successful litigation of the bona fide error defense, any violation establishes statutory liability, making the offending debt collector responsible for statutory damages, any provable actual damages, and reasonable attorney fees and costs to the successful plaintiff. -, Mem. in Support [OE-9] at p. 9. In other words, Plaintiff contends that a de minimis defense is never applicable to a FDCPA claim. Defendants, however, contend that courts have the discretion to decline to award statutory damages where the violation of the FOCPA is de minimis. See Pipiles v. Credit Bureau of I_ockporl, Inc., 886 F.2d 22, 28 (2d Cir. I989)(affirming district court's decision not to award statutory damages where defendant did not intend to deceive or harass the plaintiff and there was no evidence that defendant "frequently or persistently" violated the FOCPA); Emanuel v. :Imericun Credit Exchange, 870 F,2d 805, 809 (2nd Cif. 1989)(finding that a plaintiff was not en titled to statutory damages where the violation ofthe FOCPA consisted of sending one letter that neglected to inform the plaintiff that information provided by the plaintiff would be used to collect a debt). Defendants appear to implicitly accept that they cannot be completely absolved oC liability upon a finding that any alleged violation is de minimis; instead, they appear to suggest. via the cases they cite, that the de minimis nature of any alleged violation is relevant to PlaintiJrs claim for damages. Notably, the asserted defense does not mention damages or injury sufTered by the Plaintiff. Therefore, it is unclear how the Plaintiff would be on notice that this defense is meant to apply to the measure of the available remedies under the FOCPA. Accordingly, the fifth affirmative defense is stricken. The court will, however, allow De ICndan ts leave to replead this defense in a more specific manner and wi th the needed factual 13 particularity. Because the Defendants have cited authority showing that the de minimis nature of a violation may be relevant to the valuation of statutory damages, the court cannot conclude at this time that such defense is legally insufficient. 5. Sixth affirmative defense As their sixth affirmative defense, Defendants assert: "To the extent plaintiff is entitled to damages, which defendants deny, the plaintiff's recovery is limited to statutory limitations set forth in IS U.S.C. § 1692." Answer [DE-5] at p. 9. The court finds that this meets the fair notice pleading standard of Twombly-Iqbal. 6. Seventh, eighth, and ninth affirmative defenses Defendants assert, as their seventh, eighth, and ninth defenses, that if Plaintiff was injured or damaged, such injury "was a proximate result of the intervening and/or superseding acts and/or omissions or persons and/or entities not under the control of dcfendants"or "was as a proximate result of circumstances beyond the control of defendants" or "was as a proximate rcsul t 0 I' the acts and/or omissions of persons and/or entities not under the control of defendants." j\ nswcr I D1:-5 J at pp. 9-10. The court finds that these boilerplate affirmative defenses, with no assertion of any facts that would allow drawing of reasonable inference that such defenses are plausible, fail to meet the notice pleading standard. See Burns v. Dodeka, LLC, No. 4:09-CY-19 I3J. 2010 WL 1903987 at * 1 (N.D. Tex. May 11, 2010)(explaining that a defendant's affirmative defense of proximate cause that was "wholly conclusory" and "fail[ed] to plead any facts that demonstrate the plausibility of such defenses" must be stricken). The court recognizes that PlaintifT argues that any "proximate cause" defense is insuClicicnt as a matter of law as incompatible with the FDCPA. The court, however, assumes 14 \vithout deciding at this time, that such a defense may be applicable in as much as Plaintiff claims actual damages under the FDCP A. Therefore, Defendants are given leave to amend their answer to provide the requisite factual particularity. 7. Tenth affirmative defense condition of the mind Defendants assert in their tenth atIirmative defense: "If, in fact, defendants performed any 'vHongful acts, which is specifically denied, such acts were not performed knowingly, purposely, with malicious purpose, in bad faith, intentionally, recklcssly, willfully, or wantonly." Answer lDt-51 at p. 10. The court finds that this defense meets the notice pleading requirements of 7\l'oll1h/y-lqbal, because it pleads a condition of the mind, and thercfore complies with Rule 9(b) of the Federal Rules of Civil Procedure. Palmer, 2010 WL 2605179 at *6 (concluding that ~tllirmati\'e ()( b) defenses pleading good faith and the absence of improper motive comply with Rule and thcrefore should not be stricken). Notwithstanding Plaintiff's arguments to the contrary, the court assumes, for the time being, that such a defense may be applicable to Plaintiffs claims It)!' actual damages and the valuation of statutory damages. 8. Eleventh affirmative defense compliance with Federal Trade Commission Defendants' eleventh atIirmative defense states: "At all pertinent times, defendants acted ill compliance with the Federal Trade Commission regulations, Federal Trade Commission staff commcntary and letter commentaries, and lor Federal Trade Commission advisory opinions." /\nswcr [DE-5) at p. 10. It is unclear to the court how this constitutes a "defense" to Plaintiffs claims. In any cvent, Plaintiff does not directly challenge this affirmative defense, and the court d~clincs to strike it. 15 9. Twelfth affirmative defense of doctrines of laches, waiver, and/or estoppel Defendants' twelfth affirmative defense contends that the doctrines of lachcs, waiver and/or estoppel bar Plaintiffs claim. Answer [DE-51 at p. 10. The court determines that this dcknsc fails to meet the notice pleading requirements because it is a bare legal conclusion. f\tlmer, 2010 WL 2605179 at *6. Plaintiff also argues that these defenses are inapplicable to this action. Because DcCendants have failed to provide any factual predicate for the assertion of this defense, the court cannot yet disagree or agree with Plaintiffs contention. The court therefore will grant leave to amend the answer with respect to this defense. 10. Thirteenth affirmative defense failure to mitigate damages Similarly, Defendants' thilieenth affirmative defense, asserting "Plaintiff failed to mitigate his damages," Answer [DE-5] at p. 10, also must be stricken. Defendants fail, again, to provide any factual basis that would allow the inference that this defense is plausible. Cf Francisco. 20 I0 WL 2990159 at *9 (finding that the affirmative defense of failure to mitigate damages was adequately pled where the defendant alleged the plaintitT failed to apply for another job within a specified time period). Although Plaintiff contests the applicability of this defense in its entirety, the court will assume, for the time being, that such a defense-if it is pleaded with an adequate {actual basis-may be applicable to Plaintiffs claim for actual damages, and therefore Defendants are granted leave to amend the answer with respect to this dcfense to provide an adequate f~lctual basis. 16 1]. Fourteenth affirmative defense of reservation of rights to assert additional defense In their fourteenth at1irmative defense, Defendants "specifically reserve their right to assert such other and af1lrmative defenses as the same may arise." Answer [DE-5] at p. 10. Like the Western District of Virginia, this court finds this assertion to be "unnecessary" and subject to be stricken because it "is simply not a defense of any kind, much less an affirmative one." Po/mer, 2010 WL 2605179 at *6. The fourteenth affirmative defense is therefore stricken. IV. CONCLUSION For the foregoing reasons, Plaintiffs Motion to Strike [DE-8] is ALLOWED in part. Specifically, the following defenses asserted in the Answer are STRICKEN: Defendants' Second, ['hird. Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Twelfth, Thirteenth, and Fourteenth defenses. The Motion is DENIED with respect to Defendants' Sixth, Tenth and Eleventh defenses. The court. however, grants leave to Defendants to file, within fourteen (14) days of the filing date of this order. an amended answer curing the pleading defects noted herein. SO ORDERED. This the _~ day of October, 2010. ES C. FOX nior United States District Judge 17
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