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Whelpley v. Comenity Bank

United States District Court, M.D. Florida, Fort Myers Division

July 31, 2018

JAMES WHELPLEY, an individual and on behalf of A.W., a minor, Plaintiff,



         This matter comes before the Court on review of Plaintiff's Motion to Strike Defendant's Affirmative Defenses (Doc. #4) filed in state court on June 14, 2018. Although directed to do so, defendant has not filed a response (Doc. #12), and the time to do so has expired. For the reasons stated below, the Motion is granted with leave to amend.


         Plaintiff James Whelpley initiated this action by filing a four-count Complaint (Doc. #2) in state court before it was removed to this Court (Doc. #1) by defendant on June 18, 2018. Plaintiff alleges violations of the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.55, et seq., and Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. The allegations stem from Comenity Bank's efforts to collect a debt plaintiff incurred in connection with tuition for A.W.'s attendance at Sylvan Learning Center. (Id., ¶ 23.) Plaintiff seeks statutory and actual damages, including mental and emotional suffering, as well as attorney's fees and costs.

         Defendant filed its Answer and Affirmative Defenses (Doc. #3) on June 13, 2018 in state court, raising seven affirmative defenses which plaintiff now moves to strike.


         The Federal Rules of Civil Procedure require defendants 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. 12(f).

         As this Court recently discussed in some detail, affirmative defenses must comply with two separate pleading requirements. First, the defense, as pled, must contain “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. 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 notice sufficient to allow the plaintiff to rebut or properly litigate the defense.[1] Id. (citing 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)). Requiring defendants to allege some facts linking the defense to the plaintiff's claims “streamlines the pleading stage, helps the parties craft more targeted discovery requests, and reduces litigation costs.” Id. (citations omitted).

         Second, a defendant must avoid pleading shotgun affirmative defenses, i.e., “affirmative defenses [that] address[] the complaint as a whole, as if each count was like every other count.” Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001), abrogated on other grounds as recognized by, Nurse v. Sheraton Atlanta Hotel, 618 Fed.Appx. 987, 990 (11th Cir. 2015); see also Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014). Rather, each defense must address a specific count or counts in the complaint or clearly indicate that (and aver how) the defense applies to all claims. See Byrne, 261 F.3d at 1129; see also Lee v. Habashy, No. 6:09-cv-671- Orl-28GJK, 2009 WL 3490858, at *4 (M.D. Fla. Oct. 27, 2009). District courts have a sua sponte obligation to identify shotgun affirmative defenses and strike them, with leave to replead. See Paylor, 748 F.3d at 1127; Morrison v. Executive Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318 (S.D. Fla. 2005).


         A. First Affirmative Defense (Standing)

         Defendant's first affirmative defense asserts “that Plaintiff lacks standing as he/she has suffered no injury-in-fact as a result of any act or omission by Defendants.” (Doc. #3, p. 5.) Plaintiff contends that the defense is a “mere denial” of “Plaintiff's suffered damages.” (Doc. #4, p. 3.)

         As this Court has recently stated,

Lack of 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) (‚ÄúStanding represents a ...

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