United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's Motion to
Strike Defendant's Affirmative Defenses (Doc. #11) filed
on December 21, 2016. 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.
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.
The Complaint alleges that Dyck-O'Neal, Inc. (Defendant)
used 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.
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Defendant has since withdrawn its second affirmative defense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.
Federal Rules of Civil Procedure require a defendant to
“affirmatively state any avoidance or affirmative
defense.” Fed.R.Civ.P. 8(c). “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.
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 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)).
Affirmative Defense One
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 “injury-in-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.)
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)).
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 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.
mere procedural violation of the TCPA is not what is claimed
here. By alleging Defendant autodialed her cell phone on
eighteen 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 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 ...