United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION TO
S. Lasnik United States District Judge.
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.
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;
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
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)). Fair notice requires the defendant to
state the nature and grounds of each affirmative defense.
Qarbon.com Inc. v. eHelp Corp., 315 F.Supp.2d 1046,
1049-50 (N.D. Cal. 2004).
“[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)).
First Affirmative Defense: Estoppel, Laches, or other
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.
Qarbon.com 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. Dkt. #7-1 at
Second Affirmative Defense: Privilege or and Deceptive
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
Third Affirmative Defense: Bona Fide Error
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.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 ...