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White v. Fein, Such and Crane, LLP

United States District Court, W.D. New York

February 20, 2018

CHRISTOPHER WHITE, DARLENE SCHMIDT and WILLIAM SUITOR, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
FEIN, SUCH and CRANE, LLP, Defendant.

          DECISION AND ORDER

          H. KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         Plaintiffs 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. #1.

         Currently 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.

         Pursuant 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).[1] 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, [2] but 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 efficacy).

         A 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 (S.D.N.Y. 2010).

         First Affirmative Defense

         Plaintiffs 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.

         Defendant 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.

         Plaintiffs reply that the denial of defendant's motion to dismiss is dispositive of the affirmative defense. Dkt. #56, p.7.

         A 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.

         Third & Fifth Affirmative Defenses

         Plaintiffs 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.

         Defendant 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 ...


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