Nyberg v. Portfolio Recovery Assocs., LLC
| Decision Date | 02 June 2016 |
| Docket Number | 3:15-cv-01175-PK |
| Parties | KIRK J. NYBERG, Plaintiff, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiff Kirk J. Nyberg brings this action against Defendant Portfolio Recovery Associates, LLC ("PRA"), asserting claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), Now before the court is Nyberg's Motion for Judgment on the Pleadings Against PRA's Affirmative Defenses (#30) ("Nyberg's Motion"). For the reasons provided below, Nyberg's Motion is granted in part and denied in part.
PRA filed suit against Nyberg in the Circuit Court of the State of Oregon, County of Washington, on June 25, 2014, seeking to collect amounts allegedly due on Nyberg's Capital One Bank (USA), N.A. ("Capital One") credit card. That lawsuit will hereinafter be referred to as Nyberg I. PRA alleged in its complaint in Nyberg I that Nyberg failed to dispute monthly bills he received from Capital One, thereby establishing an account stated in the amount of $834.25, which Nyberg failed to pay. On November 25, 2014, Nyberg I was dismissed without prejudice for failure to prosecute.
Nyberg filed his initial Complaint (#1) in this action on June 25, 2015. He then filed a First Amended Complaint (#24) on January 15, 2016. The First Amended Complaint is now the operative pleading. Nyberg contends that PRA violated the FDCPA by filing Nyberg I. Nyberg's FDCPA claim consists of the following four counts: (1) PRA falsely alleged in its complaint in Nyberg I that it had an account stated, (2) PRA filed Nyberg I in an effort to sidestep the statute of limitations and "other defenses" that arose out of the cardholder agreement between Nyberg and Capital One, (3) PRA's claims in Nyberg I were barred by the applicable statute of limitations, and (4) PRA overstated the debt owed by Nyberg. Am. Compl. ¶¶ 31-34 (#24).
PRA filed its Answer to Nyberg's First Amended Complaint (#26) [hereinafter Answer] on February 5, 2016. PRA's Answer contains fourteen affirmative defenses. Nyberg now moves for judgment on the pleadings as to each affirmative defense. See Answer 5-8 (#26).
Federal Rule of Civil Procedure 12(c) governs motions for judgment on the pleadings. Rule 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989) (citations omitted). "In evaluating a motion for judgment on the pleadings, the allegations of the non-moving party are credited as true, whereas those allegations of the movingparty which have been denied are deemed false for purposes of the motion." John Doe 310 v. Archdiocese of Portland in Oregon, No. 3:13-CV-822-PK, 2014 WL 1668151, at *2 (D. Or. Apr. 25, 2014) (citation omitted).
An answer must "state in short and plain terms" the defenses to each claim asserted against the defendant. Fed. R. Civ. P. 8(b)(1)(A). Under Federal Rule of Civil Procedure 8(c), an "affirmative defense is a defense that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all of the elements of the plaintiffs claim are proven." Barnes v. AT & T Pension Benefit Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1171-72 (N.D. Cal.2010) (citation omitted) (internal quotation marks omitted). An affirmative defense is sufficiently pled if it gives the plaintiff "fair notice of the defense." Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979).
Below, I analyze Nyberg's Motion as to each of PRA's affirmative defenses, separately. Before doing so, however, I must resolve two preliminary matters: (1) whether I should construe Nyberg's Motion as a motion to strike, and (2) whether the pleading standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies to affirmative defenses.
PRA urges the court to construe Nyberg's Motion as a motion to strike and deny it as untimely under Federal Rule of Civil Procedure 12(f)(2), which requires motions to strike to be filed within 21 days after service of the challenged pleading. Nyberg captions his Motion as a "MOTION FOR JUDGMENT ON THE PLEADINGS AGAINST PORTFOLIO RECOVERY ASSOCIATES LLC'S AFFIRMATIVE DEFENSES." He also sets forth the legal standard for motions for judgment on the pleadings in his moving papers. In his Reply (#34), Nybergreiterates that is Motion is one for judgment on the pleadings. I therefore construe Nyberg's Motion accordingly.
The parties also dispute whether the pleading standard set forth in Twombly and Iqbal applies to affirmative defenses. Nyberg argues that the standard is applicable, and PRA argues that it is not. I agree with Nyberg.
"Although the Ninth Circuit has yet to rale on the issue, the majority of district courts addressing the issue have required affirmative defenses to meet the heightened pleading standard dictated by the Supreme Court in Twombly and Iqbal." Hayden v. United States, No. 3:14-CV-1060-AC, 2015 WL 350665, at *5 (D. Or. Jan. 26, 2015) (collecting cases); see also Gessele v. Jack in the Box, Inc., No. 3:10-CV-960-ST, 2011 WL 3881039, at *1-2 (D. Or. Sept. 2, 2011) (). Although the state of the law on the issue is currently in flux, I agree with Judge Acosta's recent conclusion in Hayden v. United States that the Twombly and Iqbal pleading standard applies to affirmative defenses. See 2015 WL 350665, at *2-6. Judge Accosta's conclusion is supported by an extensive, well-reasoned analysis. See id. at *2-6. Rather than rehash that analysis here, I incorporate it by reference into this Opinion and Order.
The pleading standard set forth in Twombly and Iqbal requires PRA's affirmative defenses to contain more than a mere "formulaic recitation of the elements" of a defense. Twombly, 550U.S. at 555. Rather, the affirmative defenses must be supported by factual allegations that make the defenses "plausible" on their face. See id. at 547. I now proceed to analyze each of PRA's affirmative defenses against that plausibility pleading standard.
PRA's First Affirmative Defense is pled in its entirety as follows:
Answer 5 (#26). Nyberg argues he is entitled to judgment on the pleadings as to PRA's First Affirmative Defense because, when read along with the general denial in PRA's Answer, the defense is redundant. Nyberg also contends that PRA was required to plead facts showing that Nyberg failed to state a claim for relief. In response, PRA notes that the Federal Rule of Civil Procedure 12(b) and 12(h)(2) expressly permit parties to plead failure to state a claim for relief in a responsive pleading.
Nyberg is not entitled to judgment on the pleadings as to PRA's First Affirmative Defense. This court has previously recognized that failure to state a claim for relief is a negative defense, not an affirmative defense. See Gessele, 2011 WL 3881039, at *2 (citation omitted). Unlike affirmative defenses, negative defenses typically do not have to be pled to avoid waiver. See, e.g., John Doe 310 v. Archdiocese of Portland in Oregon, No. 3:13-CV-822-PK, 2014 WL 1668151, at *3 (D. Or. Apr. 25, 2014). However, as PRA accurately notes, the Federal Rules of Civil Procedure expressly permit parties to plead failure to state a claim for relief in a responsive pleading. See Fed. R. Civ. P. 12(b), (h)(2). Indeed, Rule 12(h)(2) makes clear that a defendant waives the defense if it does not raise it through a motion, responsive pleading, or amended pleading. Here, PRA chose to raise the defense in its responsive pleading rather than by motion.
The fact that PRA alleges both a general denial and failure to state a claim for relief does not entitle Nyberg to judgment on the pleadings. See John Doe 310, 2014 WL 1668151, at *3-4(declining to grant plaintiff judgment on the pleadings as to the defendant's Seventh Affirmative Defense, even though the defense was a negative defense that was preserved by the defendant's general denial). Nor was PRA required to plead any facts showing that Nyberg failed to state a claim for relief. See Gessele, 2011 WL 3881039, at *3 (). Consequently, Nyberg is not entitled to judgment on the pleadings as to PRA's First Affirmative Defense.
PRA's Second Affirmative Defense is pled in its entirety as follows:
Answer 6 (#26). Nyberg argues he is entitled to judgment on the pleadings as to PRA's Second Affirmative Defense because Laches is an equitable defense, and as such, fails as a matter of law against Nyberg's FDCPA claim. Nyberg further argues that PRA's Second Affirmative Defense fails as a matter of law because it does not allege the...
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