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Christopher Godson, On Behalf of Himself and All Others Similarly v. Eltman

September 11, 2012

CHRISTOPHER GODSON, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
ELTMAN, ELTMAN & COOPER, P.C., AND LVNV FUNDING, LLC, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff, Christopher Godson, brings this putative class action alleging that Defendants, Eltman, Eltman & Cooper, P.C. ("Eltman") and LVNV Funding, LLC, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692a, et seq. Godson currently has two motions before this Court; he has moved to strike several of Defendants' affirmative defenses, and he seeks class certification. Defendants have opposed those motions and filed one of their own, seeking to file certain financial documents under seal. For the following reasons, the motion to strike defenses is granted, the motion for class certification is deferred, and the motion to file documents under seal is granted.

II. BACKGROUND

A. Facts

The allegations in this case are brief and straightforward: Sometime in September of 2010, Godson received a letter from Eltman indicating that it was attempting to collect a debt on behalf of LVNV Funding, LLC. In pertinent part, that letter reads, "As of the date of this letter [September 10, 2010] you owe $2628.72 (Does not include all the interest). At this time our office is willing to deduct twenty percent (20%) from the current balance if the account is settled in full. This will be a savings of: $525.74." (Compl., ¶ 16; Docket No. 1) (bold and parentheses in original).

Godson premises his class claim on the assertion that this is a form letter, "sent to hundreds, if not thousands" of consumers in New York State. (Compl., ¶ 18.)

B. Procedural History

Godson filed his complaint in this Court on September 9, 2011. (Docket No. 1.) Defendants answered on December 12, 2011. (Docket No. 9.) On January 3, 2012, Godson moved to strike several of Defendants' affirmative defenses, and, on March 27, 2012, he moved for class certification. Both of those motions were opposed by Defendants.

Recently, on August 13, 2012, Defendants moved to seal Eltman's audited financial statements. (Docket No. 38.) Briefing on these motions concluded on August 29, 2012. At that time, this Court took the motions under advisement without oral argument.

III. DISCUSSION

A. Motion to Strike

Federal Rule of Civil Procedure 8 establishes general rules for pleading, including, as relevant here, responsive pleading. In pertinent part, it states: "In responding to a pleading a party must . . . state in short and plain terms its defenses to each claim asserted against it." Fed. R. Civ. P. 8(b)(1)(A). Godson argues that ten of Defendants' fifteen affirmative defenses should be struck under Federal Rule of Civil Procedure 12(f), which allows the court to "strike from any pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Godson contends the defenses are either inapplicable to this action or pleaded conclusively, the latter of which, he argues, demonstrates a violation of the Twombly/Iqbal pleading standard and is therefore insufficient under Rule 8. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007) (rejecting the no-set-of-facts test and instead finding that a complaint must contain sufficient factual matter rendering it "plausible on its face"); Ashcroft v. Iqbal, 556 U.S. 662, 668, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (explicating and applying Twombly). Defendants response is twofold: they argue that it remains to be determined whether application of the Twombly standard to affirmative defenses is proper, and that, absent a showing of prejudice, their defenses should remain. In essence, they argue that since the Federal Rules of Civil Procedure require defendants to plead affirmative defenses in their first responsive pleading -- or risk waiver -- a certain amount of over-inclusiveness is acceptable.

1. Twombly, Iqbal, Shechter, and Affirmative Defenses

The parties' opposing views on the applicability of Twombly and Iqbal to affirmative defenses highlight a dispute that has been brewing in the district courts since those cases were decided. No clear answer has yet been distilled. Indeed, as the parties ...


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