United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant Caliber's Motion to
Strike Plaintiffs Jury Trial Demand and Unauthorized Requests
for Relief (Dkt. 7) and Plaintiffs response in opposition
(Dkt. 8). Upon consideration, the motion is GRANTED
in part and DENIED in
filed a four-count complaint against Defendant for violations
of the Florida Consumer Collection Practices Act (Count I),
the Fair Debt Collection Practices Act (Count II), and the
Telephone Consumer Protection Act (Counts III & IV).
(Complaint, Dkt. 2). He demanded a jury trial.
(Id.). Defendant contends that the jury trial demand
should be stricken because the claims are based on a mortgage
and note which include a jury trial waiver for any claims
"arising out of or in any way related to" the
mortgage or note. (Motion to Strike, Dkt. 7 at p. 2) (citing
Security Instrument, Dkt. 7-1 at ¶ 25). Plaintiff argues
that the jury trial waiver does not apply because his claims
result from Defendant's alleged violations of consumer
protection laws, not from the performance of contractual
duties created by the mortgage and note. (Response, Dkt. 8 at
also argues that Plaintiffs demands for injunctive relief and
punitive damages under the FDCPA and demand for
attorneys' fees under the TCPA should be stricken because
such relief is not authorized by the statutes. (Motion to
Strike, Dkt. 7 at p. 9) (citing 15 U.S.C. § 1692k(a); 47
U.S.C. § 227(b)(3)). Plaintiff contends that those
demands under the FDCPA should not be stricken because they
are not expressly prohibited by the statute. (Response, Dkt.
8 at pp. 10-12). Plaintiff does not oppose Defendant's
motion to strike his demand for attorneys' fees under the
TCPA. See generally (id); see also (Motion to
Strike, Dkt. 7 at p. 11) (Defendant's Local Rule 3.01(g)
Certification states "Plaintiffs counsel has advised
that she is in agreement solely as to the striking of the
demand for attorneys' fees under the TCPA.").
jury trial has been demanded, the trial "must be by jury
unless: ... the court, on motion or on its own, finds that on
some or all of those issues there is no federal right to a
jury." FED. R. Civ. P. 39(a)(2). The Eleventh Circuit
has explained that "[t]he right to trial by jury is
fundamental, and this Court 'indulge[s] every reasonable
presumption against waiver.' " Mega Life &
Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1403 (11th
Cir. 2009) (quoting LaMarca v. Turner, 995F.2d 1526,
1544 (11th Cir. 1993)).
light of every reasonable presumption against waiver,
Plaintiffs claims do not arise out of or relate to the
mortgage or note. Although not in the context of a jury trial
waiver, the Eleventh Circuit has held "[a] claim
'relates to' a contract when 'the dispute occurs
as a fairly direct result of performance of contractual
duties.' " Bahamas Sales Assoc, LLC v.
Byers, 701 F.3d 1335, 1340-41 (11th Cir. 2012) (quoting
Telecom Italia, SpA v. Wholesale Telecom Corp., 248
F.3d 1109, 1116 (11th Cir. 2001)). "[T]hat a dispute
could not have arisen but for an agreement does not mean that
the dispute necessarily 'relates to' that
agreement." Id. at 1341 (quoting
International Underwriters AG v. Triple I: Inl'l
Invs., Inc., 533 F.3d 1342, 1347 (11th Cir. 2008)).
Rather, "[t]he phrase ' "related to" marks
a boundary by indicating some direct relationship, '
" and does not " 'extend to the furthest
stretch of its indeterminancy.' " Id.
(quoting Doe v. Princess Cruise Lines, Ltd., 657
F.3d 1204, 1218-19 (11th Cir, 2011)). Plaintiffs claims,
which he bases on Defendant's alleged efforts to contact
him via mail, on his cellular telephone, and at his work in
violation of consumer protection laws, are not a direct
result of the performance of a contractual duty. Nor do they
arise out of the mortgage or note. Therefore, the jury waiver
does not apply to his claims.
Plaintiff has alleged in the Complaint that Defendant
committed violations of the FCCPA and FDCPA after he entered
into a Settlement Stipulation for Consent Judgment with
Defendant that was in rem only. (Complaint, Dkt. 2
at¶¶ 22-23). According to Plaintiff, the consent
judgment effectuated a waiver of any deficiency judgment
against him. (Id.); see also (Response, Dkt. 8 at p.
8) ("[T]he Consent to Final Judgment and waiver of any
deficiency terminated [Plaintiffs] responsibility for the
debt and the contractual relationship of the parties.").
Plaintiff analogizes the consent judgment to a bankruptcy
discharge that leaves a mortgage enforceable against a
property, but bars the creditor from enforcing the terms of
the mortgage against the debtor. See In re Sure-Snap
Corp., 983 F.2d 1015, 1018 (11th Cir. 1993) (holding
that a discharge does not terminate a contractual obligation,
but rather disables the creditor from enforcing the
obligation). That analogy is well taken. Although the consent
judgment did not invalidate the mortgage, Plaintiff alleges
that it rendered unenforceable his financial obligation on
the note secured by the mortgage. Defendant's alleged
violations of consumer protection laws following entry of the
consent judgment were not the result of the contractual
obligations imposed by the mortgage and note.
however, has presented grounds for striking certain demands
for relief in Plaintiffs FDCPA and TCPA claims. See
FED. R. Civ. P. 12(f). The civil liability section of the
FDCPA does not provide for equitable relief. See 15
U.S.C. § 1692k; see also Sibley v. Fulton DeKalb
Collection Serv., 677 F.2d 830, 834 (11th Cir. 1982)
(noting that "equitable relief is not available to an
individual under the civil liability section of the
Act"); Bolin v. Sears, Roebuck & Co., 231
F.3d 970, 977 n.39 (5th Cir. 2000) ("[C]ourts uniformly
hold that the FDCPA does not authorize equitable
FDCPA provides for actual damages, costs, a reasonable
attorney's fee, and "such additional damages as the
court may allow, but not exceeding $ 1, 000, " in an
action by an individual plaintiff. 15 U.S.C. § l692k(a).
Judges of this district have consistently interpreted the
FDCPA's "additional damages" provision as
precluding an award of punitive damages separate from or
exceeding $1, 000. See, e.g., Zaghloul v. Fair Debt
Collections & Outsourcing, No. 8;09-cv-128-T-27MAP,
2010 WL 1730789, at *4 n.6 (M.D. Fla. Mar. 19, 2010),
adopted by 2010 WL 1727459, at * 1 (M.D. Fla. Apr.
27, 2010); Lee v. Security Check, LLC, No.
3:09-cv-421-J-12TEM, 2009 WL 2044687, at *2 (M.D. Fla. July
10, 2009). Plaintiffs bare statement that there is no
evidence that Congress intended to prohibit punitive damages
awards under the FDCPA is unpersuasive. (Response, Dkt. 8 at
p. 11). He fails to cite any legislative history or case law
suggesting that the FDCPA's additional damages language
does not actually have the effect of barring a damages award,
however labeled, in excess of SI, 000. See (id.).
TCPA does not provide for an attorneys' fee award in a
private action. See 47 U.S.C. § 227(b)(3). As
noted, Plaintiff does not oppose Defendant's motion to
strike his claim for attorneys' fees under the TCPA.
(Motion to Strike, Dkt. 7 at p. 11); see generally
(Response, Dkt. 8).
reasons stated, Defendant's Motion to Strike Plaintiffs
Jury Trial Demand and Unauthorized Requests for Relief (Dkt.
7) is GRANTED in part and
DENIED in part. Plaintiffs demands
for injunctive relief and punitive damages in his FDCPA
claim, (Complaint, Dkt. 2 at Count II), are
STRICKEN. Plaintiffs demands for
attorneys' fees in his TCPA claims, (id. at
Counts III and IV), are STRICKEN.
Defendant's request that Plaintiffs demand for jury trial
be stricken is DENIED.