United States District Court, W.D. New York
CHRISTOPHER WHITE, DARLENE SCHMIDT and WILLIAM SUITOR, Individually and on behalf of all others similarly situated, Plaintiffs,
FEIN, SUCH and CRANE, LLP, Defendant.
DECISION AND ORDER
KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE
case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b)(1)(A),
for all pretrial matters. Dkt. #39.
filed this class action complaint alleging violations of the
Fair Debt Collection Practice Act (“FDCPA”), and
New York General Business Law § 349 arising from
attorneys' fees charged by defendant for legal services
pertaining to foreclosure actions against plaintiffs. Dkt.
before the Court is plaintiffs' motion to strike
defendant's first, third, fourth, fifth, sixth, seventh,
eighth, ninth, tenth, twelfth, thirteenth, fourteenth,
fifteenth, sixteenth, seventeenth and eighteenth affirmative
defenses for failure to meet the specificity requirements of
Rule 8 of the Federal Rules of Civil Procedure, as well as
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic v. Twombly, 550 U.S. 544 (2007). Dkt. #50.
to Rule 8 of the Federal Rules of Civil Procedure, a party
responding to a pleading must “state in short and plain
terms its defenses to each claim asserted against it.”
Fed.R.Civ.P. 8 (b)(1)(A). The Court may “strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter” when a
pleading is insufficient. Fed.R.Civ.P. 12(f). Motions to
strike affirmative defenses are generally disfavored,
should be granted where the affirmative defense contains
nothing more than bald assertions, unaccompanied by
supporting facts. Shechter v. Comptroller of City of
N.Y., 79 F.3d 265, 270 (2d Cir. 1996) (affirmative
defenses which amount to nothing more than mere conclusions
of law and are not warranted by any asserted facts have no
motion to strike is not intended “to furnish an
opportunity for the determination of disputed and substantial
questions of law and is not granted if insufficiency of the
defense is not clearly apparent or may better be determined
in a hearing on the merits.” Carter-Wallace, Inc.
v. Riverton Laboratories, Inc., 47 F.R.D. 366, 367-68
(S.D.N.Y. 1969). To prevail on a motion to strike an
affirmative defense, the moving party must show: (1) there is
no question of fact which might allow the defense to succeed;
(2) there is no question of law which might allow the defense
to succeed; and (3) the plaintiff would be prejudiced by the
inclusion of the defense. Sibley, 304 F.R.D. at 132.
“[I]nclusion of a defense that must fail as a matter of
law prejudices the plaintiff because it will needlessly
increase the duration and expense of litigation.”
Coach, Inc. v. Kmart Corps., 756 F.Supp.2d 421, 426
seek to dismiss the affirmative defense of failure to state a
claim upon which relief may be granted based upon the
Court's denial of defendant's motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure and the Court's grant of plaintiffs' motion
to amend the complaint. Dkt. #50-1, p.10.
responds that the district court's determination that
plaintiffs had stated a claim does not foreclose the
possibility that the Court may subsequently determine that
the claims are legally deficient. Dkt. #53, p.13.
reply that the denial of defendant's motion to dismiss is
dispositive of the affirmative defense. Dkt. #56, p.7.
determination that plaintiffs have stated plausible claims
for relief renders an affirmative defense of failure to state
a claim without legal basis. Hallmark v. Cohen
& Slamowitz, LLP, No. 11-CV-842, 2014 WL 2028426, at
*5 (W.D.N.Y. Sept. 15, 2014). Given that defendant's
motion to dismiss the complaint was denied (Dkt. #12), the
first affirmative defense is stricken.
& Fifth Affirmative Defenses
seek to dismiss the affirmative defenses of failure to
mitigate damages and contributory negligence because the
FDCPA is a strict liability statute. Dkt. #50-1, p.12.
responds that plaintiffs' claims for damages are not
limited to statutory penalties, but also seek disgorgement of
all amounts unlawfully collected and reimbursement of
interest and other expenses. Dkt. #53, p.16. In addition,
defendant argues that the answer sets forth the factual basis
for these defenses, to wit, that “by engaging in
discussions concerning loan modification, each of the
Plaintiffs had the opportunity to negotiate the issue of fees