Savage v. Citibank N.A.
| Decision Date | 14 August 2015 |
| Docket Number | Case No. 14-cv-03633-BLF |
| Court | U.S. District Court — Northern District of California |
| Parties | SCOTT F SAVAGE, Plaintiff, v. CITIBANK N.A., et al., Defendants. |
[Re: ECF 65]
This lawsuit involves claims under the federal Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, as well as various state law claims, in connection with calls made to collect on a debt owed on a Macy's store credit card. Plaintiff Scott Savage alleges that defendants Department Store National Bank ("DSNB"), FDS Bank ("FDS"), and Citibank N.A. ("Citi," collectively, with DSNB and FDS, "Defendants") repeatedly called him on his cellular phone to collect on the Macy's card debt despite two written requests that they stop. Before the Court is Plaintiff's Motion to Strike Defendants' Affirmative Defenses. Pl.'s Mot. 65. The Court finds this matter suitable for disposition without oral argument and accordingly vacates the September 3, 2015 hearing date on the motion. Civ. L.R. 7-1(b). For the reasons stated herein, Plaintiff's Motion to Strike is GRANTED IN PART and DENIED IN PART with leave to amend.
The claims in this action involve debt collection activities concerning a Macy's store credit card issued to Plaintiff by defendant DSNB. Compl. ¶ 1, ECF 1. Plaintiff alleges that DSNB is a subsidiary of Citibank, N.A., and that "the department store Macy's, Inc. is a foreign business corporation doing business in California, which issues lines of credit through its financing arm [DSNB], which are then collected by its agents [FDS] and [Citibank]." Id. ¶ 29.
In July 2013, Plaintiff stopped paying the Macy's credit card account. Id. ¶ 9. On July 10, 2013, he sent a letter to DSNB indicating that he could no longer pay the account and "requesting that it not telephone him anymore." Id. ¶¶ 2, 11. DSNB and its agents, defendants FDS and Citi, did not cease their collection calls and continued to call him nearly every day, "sometimes three (3) to six (6) times a day." Id. ¶ 12. Plaintiff sent DSNB a second letter in September 3, 2013 requesting that it stop calling him. Id. ¶ 14. The calls continued unabated. Id. ¶ 15. Defendants also mailed letters to Plaintiff from August 2013 to January 2014 in an effort to collect on the "delinquent DSNB account." Id. ¶ 16. Plaintiff alleges that this course of conduct violated federal and state law and asserts claims under the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788 et seq., the federal TCPA, as well as state common law claims for inclusion upon seclusion, and negligent training and supervision.
Defendants' June 4, 2015 Answer contains thirty-four affirmative defenses, ECF 51, which Plaintiff now seeks to strike.
Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The function of a motion made under this rule is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)) (internal quotation marks omitted). "While a Rule 12(f) motion provides the means to excise improper materials from pleadings, such motions are generally disfavored because the motions may be used as delaying tactics and because of the strong policy favoring resolution on the merits." Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010).
The decision to strike a portion of a party's pleading is within the sound discretion of the court. Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). If a claim or defense is stricken, leave to amend should be freely given when doing so would not cause prejudice to theopposing party. Wyshak v. City Nat. Bank, 607 F.2d 824, 826 (9th Cir. 1979) (per curiam).
Plaintiff challenges all thirty-four of Defendants' affirmative defenses on two grounds: "[t]hey either are insufficiently pled or are not affirmative defenses, but more of a denial of facts." Pl.'s Mot. 4. An affirmative defense is insufficiently pleaded if it fails to give the plaintiff "fair notice of the defense." Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) (quoting Wyshak, 607 F.2d at 827). Although the parties devote relatively considerable briefing to whether the Court should apply the pleading framework established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and clarified in Ashcroft v. Iqbal, 556 U.S. 662 (2009) to the affirmative defenses at hand, the requirement of factual pleading is not a new phenomenon. See Fed. R. Civ. P. 8(b)(1)(A); Twombly, 550 U.S. at 555-56 (). Because the gravamen of Plaintiff's motion is that Defendants have alleged no facts in support of their affirmative defenses, the Court considers only whether there are sufficient facts alleged in the Answer to give Plaintiff "fair notice" of the challenged defenses and will not wade into the debate over whether such defenses must also be "plausible."
In response to Plaintiff's motion, Defendants have withdrawn their second, fifth, sixteenth, eighteenth, thirty-second, thirty-third, and thirty-fourth affirmative defenses, and the Court appreciates this voluntary effort to streamline matters. Defs.' Opp. 3 n. 1, ECF 67. As to these withdrawn affirmative defenses, Plaintiff's motion is DENIED as moot.
Defendants' third affirmative defense asserts that they had Plaintiff's consent to call him. Plaintiff complains that the lack of factual specificity regarding his purported consent does not give him fair notice of the defense. Pl.'s Mot. 3. To the contrary, that Plaintiff consented to Defendants' calls is a factual pleading and the defense is easily understandable. Plaintiff's motion to strike this affirmative defense is therefore DENIED.
Defendants' fourth affirmative defense asserts "bona fide error," which Defendants contend (without identifying any actual provision) is an available statutory defense under theTCPA or RFDCPA. Defs.' Opp. 6. Their seventh affirmative defense asserts "mistake," which Defendants explain is a "standard" "factually intensive" defense. Id. Nevertheless, both defenses constitute allegations of mistake, which must be stated "with particularity" under Federal Rule of Civil Procedure 9(b). Accord Wiebe v. Zakheim & Lavrar, P.A., No. 6:12-CV-1200-ORL-18, 2012 WL 5382181, at *2 (M.D. Fla. Nov. 1, 2012); Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, 537 (D. Md. 2010); Konewko v. Dickler, Kahn, Sloikowski & Savell, Ltd., No: 07 C 5338, 2008 WL 2061551, *1 (N.D. Ill. May 14, 2008). As Defendants have failed to allege the "the who, what, when, where, and how" of their mistake, Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003), Plaintiff's motion to strike is GRANTED, with leave to amend, on Defendants' fourth and seventh affirmative defenses.
Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification are all, in Defendants' words, "factually intensive." Defs.' Opp. 6. Yet Defendants have alleged no facts. Plaintiff furthermore contends that the defenses of "justification" and "ratification" are not affirmative defenses. Given the absence of factual pleading, the Court cannot tell. Insofar as Plaintiff has asserted tort claims against Defendants, "justification" and "ratification" may be appropriate defenses to those claims. Suffice it to say, Defendants will need to amend to demonstrate the factual basis for each of these asserted defenses and may benefit from a more judicious selection of affirmative defenses. Plaintiff's motion to strike is GRANTED, with leave to amend, as to Defendants' sixth, eighth, ninth, tenth, eleventh, and twelfth affirmative defenses.
The thirteenth affirmative defense asserts that Defendants had a "valid purpose" for calling him. Plaintiff contends that "valid purpose" is not an affirmative defense and that it is likewise insufficiently pled. Pl.'s Mot. 9. Defendants merely argue that the "valid purpose" defense is "set forth in the state and/or federal statutes at issue here (i.e., the federal TCPA statute and the state RFDCPA statute) or based on the rights set forth in the United States Constitution." Defs.' Opp. 6. "Valid purpose" is not a common defense and Defendants provide no specific statutory citation so that the Court may determine whether such a defense is even applicable in this case. In theabsence of any showing of a potentially valid defense by Defendants, Plaintiff's motion to strike the thirteenth affirmative defense is GRANTED with prejudice.
Defendants' twenty-second affirmative defense asserts that Plaintiff's claims are barred by applicable statutes of limitations including those set forth in California Civil Code § 1788.30(f). The statute of limitations defense may be understood with respect to facts pled in Plaintiff's complaint. To the extent the limitations defense rests on facts not in the complaint however, Defendants' pleadings fail to provide fair notice. Plaintiff's motion to strike the twenty-second affirmative defense is accordingly GRANTED with leave to amend, though the Court will not require amendment if Defendants intend to rely on the facts alleged in the complaint.
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