Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Damian M. Miranda, An Individual v. Law Office of D. Scott Carruthers

May 23, 2011

DAMIAN M. MIRANDA, AN INDIVIDUAL
PLAINTIFF,
v.
LAW OFFICE OF D. SCOTT CARRUTHERS, A GENERAL PARTNERSHIP,
DENNIS SCOTT CARRUTHERS, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER RE PLAINTIFF‟S MOTION TO STRIKE AND MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCS. 7, 22)

I. INTRODUCTION

Plaintiff Damian M. Miranda ("Plaintiff") proceeds with this action for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788-1788.30 ("CA FDCPA") against Law Office of D. Scott Carruthers ("Defendant Law Office") and Dennis Scott Carruthers ("Defendant Carruthers") (together, "Defendants"). Before the court are Plaintiff‟s motion to strike Defendants‟ affirmative defenses (Doc. 7) and Plaintiff‟s motion for partial summary judgment (Doc. 22). Defendants filed a notice of non-opposition to Plaintiff‟s motion to strike (Doc. 18) and an opposition to Plaintiff‟s motion for partial summary judgment (Doc. 25), to which Plaintiff replied (Doc. 27).

II. MOTION TO STRIKE

A.LEGAL STANDARD

Federal Rule of Civil Procedure 12(f) provides that a court "may strike from a pleading an insufficient defense. . .." Fed. R. Civ. P. 12(f). An affirmative defense is insufficiently pled if it does not give the plaintiff fair notice of the nature of the defense. Wyshak v. City Nat'l Bank , 607 F.2d 824, 827 (9th Cir. 1979). The function of a Rule 12(f) motion to strike is to 0 avoid the expenditure of time and money that might arise from litigating spurious issues by dispensing with those issues prior to trial. Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023 (1994).

B.ANALYSIS

Plaintiff moves to strike Defendants‟ twenty-three affirmative defenses raised in Defendants‟ Answer to Plaintiff‟s Complaint:

1. The Plaintiff and each of its claims alleged therein do not state facts sufficient to constitute a claim against D. Scott Carruthers and Law Offices of D. Scott Carruthers upon which relief may be granted.

2. Any recovery against D. Scott Carruthers and Law Offices of D. Scott Carruthers, if any, must be reduced to the extent Plaintiff has failed to mitigate, minimize or avoid damages for which recovery is sought herein.

3. Plaintiff‟s claim against D. Scott Carruthers and Law Offices of D. Scott Carruthers may be barred or limited, in whole or in part, by the doctrine of waiver, unclean hands, laches and/or estoppel.

4. Plaintiff‟s causes of actions are barred by the applicable statute of limitations.

5. Plaintiff‟s causes of action are barred by accord and satisfaction.

6. Plaintiff‟s causes of action are barred by the doctrine of release.

7. Any recovery against D. Scott Carruthers and Law Offices of D. Scott Carruthers, if any, must be reduced to the extent Plaintiff owed money which was the basis of the Action being filed. 0

8. Plaintiff‟s causes of action are barred against D. Scott Carruthers and Law Offices of D. Scott Carruthers because it had a good faith belief in the validity of the claims being asserted against crosscomplainant.

9. Plaintiff‟s complaint is barred by the failure to comply with the mandatory provisions of CCP § 428.50(a).

10. The alleged actions of D. Scott Carruthers and Law Offices of D. Scott Carruthers were proper and did not violate any provision of Fair Credit Reporting or Fair Debt Collection.

11. The alleged actions of D. Scott Carruthers and Law Offices of D. Scott Carruthers were proper and did not violate any provision of the California Rosenthal Act, California Civil Code § 1788 et seq.

12. That at all times mentioned in the cross-complaint, D. Scott Carruthers and Law Offices of D. Scott Carruthers acted lawfully and with his legal rights with a good faith belief in the exercise of that right, and in furtherance of a legitimate business purpose. Further, D. Scott Carruthers and Law Offices of D. Scott Carruthers acted in good faith in the honest belief that the acts, conduct and communications, if any, of D. Scott Carruthers and Law Offices of D. Scott Carruthers were justified under the circumstances based upon information reasonably available to him.

13. Plaintiff failed to give D. Scott Carruthers and Law Offices of D. Scott Carruthers the right to arbitrate.

14. Assuming arguendo that D. Scott Carruthers and Law Offices of D. Scott Carruthers violated a statute alleged in the complaint, which proposition D. Scott Carruthers and Law Offices of D. Scott Carruthers denies, such violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid such error.

15. At all times mentioned in the complaint, D. Scott Carruthers and Law Offices of D. Scott Carruthers maintained reasonable procedures created to prevent any type of intentional violations of the Fair Debt Collection Practices Act. 0

16. The alleged actions of D. Scott Carruthers and Law Offices of D. Scott Carruthers were not accompanied by actual malice, intent to harm or injure and/or will to or toward Defendant.

17. D. Scott Carruthers and Law Offices of D. Scott Carruthers alleges that if Defendant, or either of them, were damaged in any sum or the sums alleged, which damage D. Scott Carruthers and Law Offices of D. Scott Carruthers denies, the Defendant's damages, and each of them, are limited by and to those provided for by 15 U.S.C. § 1692K(a), and each of its sub-parts.

18. Any damages suffered by Defendant, or each of them, were caused by or contributed to by the conduct of Defendant and/or their agents, servants, employees, or representatives, and were not caused by the acts or omissions of D. Scott Carruthers and Law Offices of D. Scott Carruthers, or its agents, servants, employees, or representatives, and therefore Defendant claims for damages, if any, which are expressly denied, are barred by or must be reduced by the percentages of fault attributable to Defendant, or each of them.

19. Any injury or damage suffered or sustained by Defendant, or each of them, was in whole or in part proximately caused by persons or entities other than D. Scott Carruthers and Law Offices of D. Scott Carruthers.

20. Defendant's damages, if any, were caused by intervening and/or supervening causes, and were not caused by D. Scott Carruthers and Law Offices of D. Scott Carruthers.

21. Any liability of D. Scott Carruthers and Law Offices of D. Scott Carruthers, which is expressly denied, is solely vicarious, imputed, or imposed by law. Defendant's damages, if any, which are expressly denied, must be reduced by the percentage of fault attributable to the acts or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.