Summary
entertaining possibility that consumer's conduct is immaterial but not striking unclean hands defense because court was "aware of no binding authority that would require such a sweeping conclusion"
Summary of this case from Francisco v. Midland Funding, LLCOpinion
No. CV-06-1988-PHX-FJM.
February 20, 2007
ORDER
This action arises under the Federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The court has before it plaintiffs' "Motion to Strike Immaterial and Incomplete Affirmative Defenses" ("Motion to Strike") (doc. 19), the Neuheisel defendants' response (doc. 21) and plaintiffs' reply (doc. 22).
Plaintiffs move to strike five of the Neuheisel defendants' defenses pursuant to Rule 12(f), Fed.R.Civ.P., see Motion to Strike at 2, which provides that "[u]pon motion made by a party . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, we will not grant a Rule 12(f) motion to strike if it is a disguised motion to determine the underlying merits of the defense. Those matters are best addressed "only after further development by way of discovery and a hearing on the merits, either on a summary judgment motion or at trial." 5C Wright Miller, Federal Practice and Procedure § 1381. A 12(f) motion that attempts to attack the underlying merits of a defense is both dilatory and harassing. See id.
Plaintiffs move to strike the following defenses: (1) "plaintiffs have not suffered any damages;" (2) plaintiffs' "claimed damages, if any, were caused in whole or part by the conduct and acts or omissions of the Plaintiffs themselves;" (3) "declaratory relief is not available to the Plaintiffs," (4) laches and (5) unclean hands. See Motion to Strike at 1 (citingAmended Answer (doc. 18) at 3).
In arguing that defendants may not claim that "Plaintiffs have not suffered any damages," plaintiffs contend that "actual damages are not a prerequisite to an award of statutory damages or attorneys fees." Motion to Strike at 4. Although actual damages are not a prerequisite to an award under the FDCPA, they are available. See 15 U.S.C. § 1692k(a)(1). In fact, plaintiffs' amended complaint alleges that defendants are liable for plaintiffs' "[a]ctual out-of-pocket damages." Amended Complaint (doc. 15) at 8. Therefore, we will not strike this particular defense.
Next, plaintiffs argue that defendants cannot assert that plaintiffs' "claimed damages, if any, were caused in whole or part by the conduct and acts or omissions of the Plaintiffs themselves" because "[c]ontributory fault is not a defense to the FDCPA." Motion to Strike at 3. Yet it is not obvious that defendants assert a contributory negligence defense; what they may in fact be asserting is a causation defense. Plaintiffs themselves claim actual damages. At this stage of litigation, defendants may defend by claiming that plaintiffs' actual damages were not caused by defendants' conduct. Therefore, this defense does not meet any of the grounds 12(f) provides as reason to strike.
Third, plaintiffs contend that defendants may not assert that declaratory relief is not available to plaintiffs. See Motion to Strike at 6-7. Although the FDCPA expressly provides for monetary relief, see 15 U.S.C. § 1692k, the availability of declaratory relief under the FDCPA is very much an open question in all circuits. See, e.g., Andrew Bradt, Much to Gain and Nothing to Lose: Implications of the History of the Declaratory Judgment for the (b)(2) Class Action, 58 Ark. L.Rev. 767, 825 (2006). We will not strike this defense because it would require us to prematurely decide its underlying merits.
Finally, plaintiffs argue that defendants cannot assert the equitable defenses of laches and unclean hands. The FDCPA is a strict liability statute. Clark v. Capital Credit Collection Servs., 460 F.3d 1162, 1175 (9th Cir. 2006). For that reason, an FDCPA defendant's intent has no bearing on liability, although it may be considered in mitigating damages. See id. We might extrapolate this rule to find that an FDCPA plaintiff's inequitable conduct is likewise immaterial. However, we are aware of no binding authority that would require such a sweeping conclusion. Therefore, we decline to strike defendants' unclean hands and laches defenses.
Therefore, it is ORDERED DENYING plaintiffs' Motion to Strike (doc. 19).