United States District Court, M.D. Florida, Fort Myers Division
JAMES WHELPLEY, an individual and on behalf of A.W., a minor, Plaintiff,
COMENITY BANK, Defendant.
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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. 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).
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).
First Affirmative Defense (Standing)
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.)
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)
(“Standing represents a ...