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Aguilar v. LVNV Funding LLC

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

July 26, 2019

ORLANDO AGUILAR, Plaintiff,
v.
LVNV FUNDING LLC and O&L LAW GROUP, P.L., Defendants.

          OPINION AND ORDER

          JOHN E. STEELE SR. UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on plaintiff's Motion to Strike (Doc. #27) filed on April 22, 2019. Defendant filed a Response (Doc. #32) on May 6, 2019, and plaintiff filed a Reply (Doc. #41) on June 12, 2019. For the reasons set forth below, the motion is granted.

         I.

         On February 2, 2019, plaintiff Orlando Aguilar (Plaintiff) filed a Complaint (Doc. #1) against defendant LVNV Funding LLC (LVNV), alleging numerous violations of Section 1692e of the Fair Debt Collection Practices Act (the FDCPA). According to the Complaint: At some point after August 10, 2001, Plaintiff defaulted on a credit card debt he incurred, and his debt was ultimately sold to Hudson & Keyse, L.L.C. (H&K). (Doc. #1, ¶¶ 9-10.) On September 22, 2008, H&K filed a debt-recovery action against Plaintiff in the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida. (Id. ¶ 11.) On December 8, 2008[1], the county court entered final judgment in favor of H&K and against Plaintiff. (Id. p. 35.)

         In the county court action on June 13, 2016, H&K filed a notice indicating that it assigned its interests in the final judgment to LVNV. (Id. ¶ 13.) The notice attached an affidavit executed by “an authorized representative of LVNV, ” which provided that H&K assigned its rights in the final judgment to LVNV “in exchange for valuable consideration . . . .” (Id. p. 38.) On May 18, 2018, LVNV filed a motion for writ of garnishment in the county court action, seeking to garnish Plaintiff's wages. (Id. ¶ 19.)

         In this case, Plaintiff alleges LVNV violated the FDCPA by filing motions in the county court action “without ever seeking or being granted leave . . . to substitute party plaintiffs, ” misrepresenting that LVNV was a plaintiff in the lawsuit, and moving the court to enter “final judgment permitting LVNV to garnish [Plaintiff's] wages.” (Id. ¶¶ 22-23.) LVNV filed an Amended Answer and Affirmative Defense (Doc. #17) on April 9, 2019. In it, LVNV asserts that Plaintiff's claims against LVNV arise out of LVNV's litigation conduct in the county court case, and that LVNV is not liable for such litigation conduct pursuant to the First Amendment and the Noerr-Pennington doctrine.[2]

         II.

         The Federal Rules 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 has recently discussed in detail, 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. 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).

         III.

         Plaintiff now moves to strike LVNV's affirmative defense. Plaintiff contends that (1) LVNV has failed to allege sufficient facts to put Plaintiff on notice of the grounds on which the affirmative defense rests; and (2) LVNV's affirmative defense is otherwise legally insufficient because the First Amendment and the Noerr-Pennington doctrine are not valid defenses in this case.

         A. Whether LVNV Sufficiently Pled its Affirmative Defense

         LVNV asserts in its affirmative defense that Plaintiff's claims against LVNV are premised on LVNV's underlying litigation conduct as set forth in paragraphs 13-23 of the Complaint, and that it is not liable for such conduct under the First Amendment and the Noerr-Pennington doctrine. In relevant part, Paragraphs 13-23 of the Complaint allege that LVNV (1) filed an affidavit in the county court action averring that it was the assignee of H&K's interests in the final judgment; (2) represented itself as the plaintiff in the action without seeking leave of court to substitute parties; and (3) continued to misrepresent that LVNV was the plaintiff in the county court action. LVNV contends in its affirmative defense that such litigation conduct is “absolutely privileged and protected by” the First Amendment and the Noerr-Pennington doctrine.

         As to the Noerr-Pennington doctrine, the Court finds LVNV's affirmative defense to be sufficiently pled because it asserts that LVNV is not liable for the litigation conduct described in paragraphs 13-23 of the Complaint under the Noerr-Pennington doctrine. As to the First Amendment, however, LVNV fails state the basis of its First Amendment defense. This leaves Plaintiff ...


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