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Opico v. Convergent Outsourcing, Inc.

United States District Court, W.D. Washington, Seattle

April 19, 2019



          Robert S. Lasnik United States District Judge.

         This matter comes before the Court on plaintiff Jose Montes Opico's “Motion to Strike Affirmative Defenses.” Dkt. #5. For the following reasons, plaintiff's motion is GRANTED.


         Plaintiff's complaint alleges that defendant Convergent Outsourcing, Inc. has been attempting to collect a debt owed on an unpaid T-Mobile bill from him since mid-2018. Dkt. #1-1 at ¶ 4. Plaintiff alleges that he never opened the account and does not owe the contested amount. Id. at ¶ 11. Plaintiff further alleges that, despite repeatedly informing defendant of this, defendant has continued to contact him and report against his credit. Id. at ¶¶ 13-15. Accordingly, plaintiff brought claims alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), see 15 U.S.C. §§ 1692e-1692g; the Washington Collection Agency Act, see RCW 19.16.250, RCW 19.16.440; and the Washington Consumer Protection Act, see RCW 19.86 et seq. Dkt. #1-1 at ¶¶ 20-40. Defendant's Aanswer included seventeen affirmative defenses that plaintiff moved to strike. Dkt. #4; Dkt. #5.

         As an initial matter, defendant requested the leave of the Court to file an Amended Answer with ten affirmative defenses instead of seventeen in its opposition. Dkt. #7 at 1. The Court GRANTS defendant's request for leave to file the Amended Answer, and will consider only those ten affirmative defenses. Dkt. #7-1; see Fed.R.Civ.P. 15(a)(2).


         “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). To determine whether a defense is insufficient, the Court asks whether it gives the plaintiff fair notice of the defense. Simmons v. Navajo County, 609 F.3d 1011, 1023 (9th Cir. 2010), overruled in part on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)).[1] Fair notice requires the defendant to state the nature and grounds of each affirmative defense. Inc. v. eHelp Corp., 315 F.Supp.2d 1046, 1049-50 (N.D. Cal. 2004).

         However, “[d]istrict courts within the Ninth Circuit have uniformly stated that such motions are disfavored.” F.T.C. v. Debt Sols., Inc., No. C06-298JLR, 2006 WL 2257022, at *1 (W.D. Wash. Aug. 7, 2006). A plaintiff must show that “there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed.” Kerzman v. NCH Corp., No. C05-1820JLR, 2007 WL 765202, at *7 (W.D. Wash. Mar. 9, 2007) (quoting Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F.Supp.2d 1028, 1032-33 (C.D. Cal. 2002)).

         A. First Affirmative Defense: Estoppel, Laches, or other Equitable Doctrines

         Defendant's list of equitable doctrines is insufficient to give plaintiff fair notice of the claim being raised. Dkt. #7-1 at ¶ 45. It is not clear what the nature of the defense is, or what “other equitable doctrines” may apply. Inc., 315 F.Supp.2d at 1049 (finding that defendant did not provide “fair notice” of its defense when it “[did] not specify what the defense is-whether it is asserting a single type of estoppel or several types of estoppel.”). The vague and seemingly unrelated facts asserted do not show how defendant would prove the elements of an equitable defense.[2] Dkt. #7-1 at ¶ 45.

         B. Second Affirmative Defense: Privilege or and Deceptive Means

         Defendant seems to assert two separate defenses, concerning privilege or justification and deceptive or misleading means. Dkt. #7-1 at ¶ 48. Defendant's privilege or justification defense is unsubstantiated. It has not provided any rationale for its alleged misconduct. First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-CV-01893-HRL, 2016 WL 3017552, at *3 (N.D. Cal. May 26, 2016) (striking defendant's affirmative defense of justification and privilege as insufficiently pled when defendant did not provide a valid factual basis that might excuse it from liability). Defendant also denies using “false, deceptive or misleading means, ” but this is not an affirmative defense. Dkt. #7-1 at ¶ 48. It is merely a denial of plaintiff's allegations, and one that defendant has already made in its Amended Answer. Id. at ¶ 20.

         C. Third Affirmative Defense: Bona Fide Error

         The FDCPA allows debt collectors to escape liability “if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). Defendant has not identified the bona fide error or innocent and unintentional mistake giving rise to this defense. Dkt. #7-1 at ¶ 50; see Nguyen v. HOVG, LLC, No. 14CV837 BTM RBB, 2014 WL 5361935, at *2 (S.D. Cal. Oct. 20, 2014) (“Because the bona fide error defense rests upon mistake, the circumstances surrounding the mistake must be stated with particularity.”). Rather, defendant simply refers to “reasonable procedures [used] to verify that plaintiff owed the subject financial obligation, ” without specifying what procedures were maintained.[3]Id.; see Jacobson v. Persolve, LLC, No. 14-CV-00735-LHK, 2014 WL 4090809, at *7 (N.D. Cal. Aug. 19, 2014) (striking defense as “devoid of [] factual specificity” when defendant merely referred to “the maintenance of ...

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