In Re: Checking Account Overdraft Litigation

MOTION to Amend/Correct Answer

S.D. Fla.December 5, 2011

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 1:09-MD-02036-JLK IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No. 2036 THIS DOCUMENT RELATES TO: THIRD TRANCHE ACTIONS Dwyer v. TD Bank, N.A. S.D. Fla. Case No. 10-20855-JLK D.Mass. Case No. 09-cv-12118 Mascaro v. TD Bank, N.A. S.D. Fla. Case No. 10-21117-JLK D.D.C. Case No. 10-cv-0040 Mosser v. TD Bank, N.A. S.D. Fla. Case No. 10-21386-JLK E.D. Pa. Case No. 10-cv-00731 Mazzadra, et. al v. TD Bank, N.A. S.D. Fla. Case No. 10-21870-JLK DEFENDANT TD BANK N.A.’S MOTION TO FILE AN AMENDED ANSWER PURSUANT TO RULE 15(a)(2), WITH AMENDED ANSWER Defendant TD Bank, N.A. hereby moves, pursuant to Fed. R. Civ. P. 15(a)(2), to file an amended answer by leave of court. On November 10, 2011, TD Bank sought the consent of Plaintiffs to the filing of the amended answer, but Plaintiffs have neither consented nor objected to the amendment. Accordingly, having allowed ample time for Plaintiffs to consent, TD Bank Case 1:09-md-02036-JLK Document 2193 Entered on FLSD Docket 12/05/2011 Page 1 of 5 2 now seeks leave of this Court to file the amended pleading. A copy of the amended answer is attached hereto as Exhibit A. Pursuant to Rule 15(a)(2), “[t]he court should freely give leave when justice so requires.” Leave to amend should be given under this rule “[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir.2006) (internal quotation marks omitted). In short, “[t]here must be a substantial reason to deny a motion to amend.” Laurie v. Alabama Court of Criminal Appeals, 256 F.3d 1266, 1274 (11th Cir. 2001). See Spanish Broadcasting Sys., Inc. v. Clear Channel Commc’ns, Inc., 376 F.3d 1065, 1077 (11th Cir. 2004) (“The Supreme Court has emphasized that leave to amend must be granted absent a specific, significant reason for denial.”). TD Bank seeks to amend its answer solely to provide a more detailed pleading of its asserted defenses because of a split of authority among U.S. District Courts in the Eleventh Circuit as to whether affirmative defenses must meet the pleading standards of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Compare Mid- Continent Cas. Co. v. Active Drywall South, Inc., 765 F. Supp. 2d 1360, 1361 (S.D. Fla. 2011) (applying Twombly standard to affirmative defenses), and Castillo v. Roche Labs., Inc., 2010 WL 3027726, at *2 (S.D. Fla. Aug. 2, 2010) (same), with Adams v. JP Morgan Chase Bank, N.A., 2011 WL 2938467, at *2-4 (M.D. Fla. July 21, 2011) (noting split in authority and concluding that the better rule was that Twombly was inapplicable to affirmative defenses because Twombly was based on Rule 8(a) rather than Rule 8(b) and (c)), and Jackson v. City of Centreville, 269 Case 1:09-md-02036-JLK Document 2193 Entered on FLSD Docket 12/05/2011 Page 2 of 5 3 F.R.D. 661, 662 (N.D. Ala. 2010) (same). Relying on cases that have applied Twombly to the pleading of affirmative defenses, the plaintiffs in the first tranche action against Union Bank, N.A. argued that “affirmative defenses that merely offer labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” (Dkt. No. 1387, at 39 (internal quotation marks omitted)). Asserting that Union Bank, N.A., failed to plead in accord with Twombly, those plaintiffs criticized Union Bank, N.A.’s pleadings as “thoughtless, shotgun pleadings.” (Id. at 40). Accordingly, out of an abundance of caution, and in order to moot any question regarding the degree of specificity required in the pleading of defenses, TD Bank hereby submits an amended answer to include detailed factual averments supporting its asserted defenses without conceding that Twombly applies to its pleading. Plaintiffs will suffer no prejudice by, nor was there any undue delay in the filing of, the amended answer. The amended answer contains no changes to the responses to Plaintiffs’ allegations in the Consolidated Third Amended Class Action Complaint. The amendment adds no new defenses. Rather, the amended answer simply describes in the detail demanded by Plaintiffs’ counsel in the tranche one actions many of the specific facts that support the various defenses against the claims of each individual plaintiff, as developed through the deposition testimony of the named plaintiffs since the original answer was filed. The pleading is lengthy only because the plaintiffs are numerous, and the facts pertaining to each of them and to the respective defenses are varied. Accordingly, amendment of TD Bank’s answer is appropriate under Fed. R. Civ. P. 15(a)(2). Case 1:09-md-02036-JLK Document 2193 Entered on FLSD Docket 12/05/2011 Page 3 of 5 4 Dated: December 5, 2011 Respectfully Submitted, /s/ William J. Kayatta, Jr. William J. Kayatta, Jr. (pro hac vice) wkayatta@pierceatwood.com Lucus A. Ritchie (pro hac vice) lritchie@pierceatwood.com PIERCE ATWOOD LLP Merrill’s Wharf 254 Commercial Street Portland, ME 04101 Tel: (207) 791-1100 Fax: (207) 791-1350 Attorneys for Defendant TD Bank, N.A. Case 1:09-md-02036-JLK Document 2193 Entered on FLSD Docket 12/05/2011 Page 4 of 5 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case No. 1:09-MD-02036-JLK IN RE: CHECKING ACCOUNT OVERDRAFT LITIGATION MDL No. 2036 I hereby certify that on December 5, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Lucus A. Ritchie Lucus A. Ritchie lritchie@pierceatwood.com PIERCE ATWOOD LLP Merrill’s Wharf 254 Commercial Street Portland, ME 04101 Tel: (207) 791-1100 Fax: (207) 791-1350 Case 1:09-md-02036-JLK Document 2193 Entered on FLSD Docket 12/05/2011 Page 5 of 5