The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEVEN BRAUNSTEIN,
Plaintiff,
v. Case No: 2:19-cv-700-FtM-29MRM
MARSH LANDING COMMUNITY
ASSOCIATION AT ESTERO, INC.
and TOWNE PROPERTIES ASSET
MANAGEMENT COMPANY,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion to
Strike Defendant Marsh Landing Community Association at Estero,
Inc.'s Affirmative Defenses (Doc. #59) filed on February 6, 2020.
Defendant Marsh Landing Community Association at Estero, Inc.
filed a Response in Opposition to the Plaintiff’s Motion to Strike
Affirmative Defenses (Doc. #69) on March 11, 2020. For the reasons
set forth below, the motion to strike is denied.
I.
On January 17, 2020, plaintiff filed an eleven-count First
Amended Verified Complaint and Demand for Jury Trial (Doc. #49)
against Marsh Landing Community Association at Estero, Inc.,
(Marsh Landing) Towne Properties Asset Management Company (Towne),
Alliance CAS, LLC (Alliance), and Florida Community Law Group,
P.L. (FCLG) alleging violations of the Fair Debt Collection
Practices Act (FDCPA) and the Florida Consumer Collection
Practices Act (FCCPA). Only Counts I through IV are specific to
Marsh Landing, and are all brought under the FCCPA. At issue here
are the three Affirmative Defenses (Doc. #58) asserted by Marsh
Landing.
II.
“In responding to a pleading, a party must affirmatively state
any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c). “An
affirmative defense is generally a defense that, if established,
requires judgment for the defendant even if the plaintiff can prove
his case by a preponderance of the evidence.” Wright v. Southland
Corp., 187 F.3d 1287, 1303 (11th Cir. 1999). “The court may strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f).
It must be shown that the allegations being
challenged are so unrelated to plaintiff's
claims as to be unworthy of any consideration
as a defense and that their presence in the
pleading throughout the proceeding will be
prejudicial to the moving party. . . . Thus,
even when technically appropriate and well-
founded, [motions to strike] often are not
granted in the absence of a showing of
prejudice to the moving party.
Harvey v. Lake Buena Vista Resort, LLC, 568 F. Supp. 2d 1354, 1359
(M.D. Fla. 2008), aff'd, 306 F. App'x 471 (11th Cir. 2009)
(citation omitted).
This Court has previously stated there are two pleading
requirements for an affirmative defense:
First, the defense, as plead, must contain
“some facts establishing a nexus between the
elements of an affirmative defense and the
allegations in the complaint,” so as to
provide the plaintiff fair notice of the
grounds upon which the defense rests. Daley v.
Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL
3517697, at *3 (M.D. Fla. June 28, 2016).[]
Boilerplate pleading – that is, merely listing
the name of the affirmative defense without
providing any supporting facts – is
insufficient to satisfy Rule 8(c), because it
does not provide notice sufficient to allow
the plaintiff to rebut or properly litigate
the defense.[] Id. (citing Grant v. Preferred
Research, Inc., 885 F.2d 795, 797 (11th Cir.
1989); Hassan v. U.S. Postal Serv., 842 F.2d
260, 263 (11th Cir. 1988)). Requiring
defendants to allege some facts linking the
defense to the plaintiff’s claims “streamlines
the pleading stage, helps the parties craft
more targeted discovery requests, and reduces
litigation costs.” Id. (citations omitted).
Second, a defendant must avoid pleading
shotgun affirmative defenses, viz.,
“affirmative defenses that address the
complaint as a whole, as if each count was
like every other count.” Byrne v. Nezhat, 261
F.3d 1075, 1129 (11th Cir. 2001), abrogated on
other grounds as recognized by, Nurse v.
Sheraton Atlanta Hotel, 618 F. App’x 987, 990
(11th Cir. 2015); see also Paylor v. Hartford
Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir.
2014). Rather, each defense must address a
specific count or counts in the complaint or
clearly indicate that (and aver how) the
defense applies to all claims. See Byrne, 261
F.3d at 1129; see also Lee v. Habashy, No.
6:09–cv–671–Orl–28GJK, 2009 WL 3490858, at *4
(M.D. Fla. Oct. 27, 2009). District courts
have a sua sponte obligation to identify
shotgun affirmative defenses and strike them,
with leave to replead. See Paylor, 748 F.3d at
1127; Morrison v. Executive Aircraft
Refinishing, Inc., 434 F. Supp. 2d 1314, 1318
(S.D. Fla. 2005).
PK Studios, Inc. v. R.L.R. Investments, LLC, No. 2:15-CV-389-FTM-
99CM, 2016 WL 4529323, at *2 (M.D. Fla. Aug. 30, 2016) (footnotes
omitted).
II.
Plaintiff generally argues that the defenses are “bare bones”
and fail to comply with the pleading requirements of Fed. R. Civ.
P. 8(a). The Court disagrees. All three are supported by
sufficient facts to place plaintiff on notice of the basis for the
defenses. One defense references specific paragraphs of the First
Amended Verified Complaint, and another gives specific dates where
appropriate. The motion to strike will be denied on this basis.
The more specific arguments are addressed below.
A. First Affirmative Defense: Set Off
The first defense asserts that if plaintiff establishes a
violation of the FCCPA, defendant would be entitled to set-off the
amount plaintiff owes to defendant for other debts. The defense
is set forth as follows:
The Defendant affirmatively alleges that to
the extent the Plaintiff establishes a
violation of the FCCPA, it is entitled to set-
off of any and all amounts owed by the
Plaintiff to the Defendant for failure to pay
quarterly assessments, special assessments,
interest, late fees, and attorney’s fees and
costs allowable by Florida law pursuant to
sections 720.308 and 720.3085, Florida
Statutes and the Defendant’s governing
documents.
(Doc. #58, p. 9.) Plaintiff argues that such a set-off of damages
has consistently been rejected by courts because it defeats the
purpose behind the consumer protection statutes. Defendant
responds that the defense is asserted in order to avoid waiver
arguments in a pending collections lawsuit against plaintiff in
state court.
Plaintiff’s argument that a set-off defense is “contrary to
the law” is overstated. Brook v. Chase Bank USA, N.A., 566 F.
App'x 787, 790 (11th Cir. 2014) held that the bankruptcy court did
not abuse its discretion when it declined to set off statutory
damages and attorney's fees awarded under the FCCPA against a pre-
petition debt discharged in bankruptcy. The implication is that
the Court had the discretion to allow a set off. “The Eleventh
Circuit has not reached the specific question of whether set off
is a proper affirmative defense in FDCPA and FCCPA cases.”
Whelpley v. Comenity Bank, No. 2:18-CV-433-FTM99MRM, 2018 WL
3629246, at *3 (M.D. Fla. July 31, 2018). The motion will be
denied as to the first defense.
B. Second Affirmative Defense: Statute of Limitations
The second defense alleges that plaintiff’s claim, or parts
of the claim, are barred by the applicable statute of limitations.
More specifically, defendant states:
The Defendant affirmatively alleges that the
Plaintiff’s claim, or parts thereof, are
barred by the expiration of the statute of
limitations period. The Plaintiff alleges in
Paragraphs 17 and 18, that the Defendant
charged the Plaintiff $37.53 for prorated
first quarter dues of the first quarter of
2013. Upon information and belief, it appears
the Plaintiff disputes the debt accrued due to
the proration of first quarter dues in 2013.
Therefore, the time period in which Plaintiff
became aware of any potential dispute as to
amounts owed would effectively “start the
clock” on Plaintiff’s ability to bring this
cause of action. Upon information and belief,
Plaintiff had been put on notice of amounts
owed since as far back as 2013. In the event
Plaintiff had notice as far back as 2013 of an
inaccuracy of the amount alleged to be owed,
the Plaintiff would be barred from pursuing
any alleged damages resulting from the alleged
actions of the Defendant occurring before
2017.
(Doc. #58, p. 9.) Paragraphs 17 and 18 of the First Amended
Verified Complaint state:
17. Because Mr. Braunstein filed his
bankruptcy case on March 22, 2013, and Marsh
Landing charged association dues on a
quarterly basis, Mr. Braunstein was allegedly
responsible for paying pro-rated dues for the
first quarter of 2013, representing the amount
of dues incurred between March 22, 2013 and
the end of the first quarter.
18. Accordingly, Marsh Landing charged Mr.
Braunstein a sum total of $37.53 for the
prorated first quarter dues post-petition.
However, no Defendant informed Mr. Braunstein
or his bankruptcy counsel of this minor pro-
rated charge.
(Doc. #49, p. 4) (emphasis in original).
Plaintiff argues that his claims are based on the fact that
he did not have notice that the assessments were due, and therefore
the defense that potential notice started the clock simply
contradicts the facts as pled, and operates as a mere denial and
not an affirmative defense. But the defense is qualified by
language stating “In the event Plaintiff had notice”. If
plaintiff proves he did not have notice, no bar on damages would
apply.
Plaintiff also argues that the statute of limitations defense
is irrelevant and immaterial because the allegations against
defendant all arise out of specific conduct in 2018. However, the
“alleged default” paragraphs for dues discuss facts from 2013, and
the defense directly cites to those paragraphs. The Court finds
no basis to strike the defense.
C. Third Affirmative Defense: Bona Fide Error
The third defense asserts that any violation of the FCCPA
that may be established was not intentional and resulted from a
bona fide error despite maintenance of reasonable procedures. The
defense states in full:
The Defendant affirmatively alleges that to
the extent the Plaintiff establishes a
violation of the FCCPA, such violation was not
intentional and resulted from a bona fide
error notwithstanding the maintenance of
procedures reasonable adapted to avoid any
such error. The Defendant further alleges that
it has systems and procedures in place to
verify the veracity of the amounts owed by the
Plaintiff, to wit, the accounting for the
Defendant was handled by an independent
accountant prior to 2016 and the accounting
for the Defendant was handled by its property
management company, Towne Properties from 2016
– June 2019. Payments are made directly to the
accounting firm or the property management
company respectively. The Defendant further
asserts that while it provided Mr.
Braunstein’s account for collections to
Alliance, Alliance did not provide updates to
the Defendant on its collection efforts and
additionally, did not advise the Defendant of
the charges it was adding to the Plaintiff’s
account, nor of appearance of counsel on
behalf of the Plaintiff in the State Court
Lawsuit.
(Doc. #58, p. 10.) Plaintiff argues that the “explanation”
offered does not reflect any actions Marsh Landing took, only that
it relied on third parties to verify the amounts owed, and is
insufficient to show a bona fide error.
Under the FCCPA, “[a] person may not be held liable in any
action brought under this section if the person shows by a
preponderance of the evidence that the violation was not
intentional and resulted from a bona fide error, notwithstanding
the maintenance of procedures reasonably adapted to avoid such
error.” Fla. Stat. § 559.77(3). The Florida statute is similar
to, but more expansive than, the the FDCPA, which is limited to
debt collectors. 15 U.S.C. § 1692k(c). However, “due
consideration and great weight” is given to “federal courts
relating to the federal Fair Debt Collection Practices Act.” Fla.
Stat. § 559.77(5).
The “bona fide error defense” does not encompass a mistake of
law or misinterpretations of the requirements of the statute.
Prescott v. Seterus, Inc., 635 F. App'x 640, 646 (llth Cir. 2015)
(citing Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA,
559 U.S. 573, 581, 587 (2010)). Rather, the defense is “designed
to avoid errors like clerical or factual mistakes.” Owen v. I.C.
Sys., Inc., 629 F.3d 1263, 1272 (lith Cir. 2011) (quoting Jerman,
at 586). The Court finds that the defense sufficiently pleads a
bona fide error despite established procedures.
Accordingly, it is hereby
ORDERED:
Plaintiff's Motion to Strike Defendant Marsh Landing
Community Association at Estero, Inc.'s Affirmative Defenses (Doc.
#59) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 26th day
of March, 2020.
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JGHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record