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Luradean Young-Smith v. Recovery Management Services


April 18, 2012


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Recovery Management Services, Inc. ("RMS," as its counsel styles it) and Travis Hasom have filed what purports to be an Answer, supplemented by Affirmative Defenses ("ADs"), to the Fair Debt Collection Practices Act ("Act") Complaint brought against them by Luradean Young-Smith ("Young-Smith"). But that filing reflects defense counsel's flouting of the mandates of Fed. R. Civ. P. ("Rule") 8 and 11(b)(the latter of which requires objective good faith on the part of parties and their counsel), and so it is stricken sua sponte.*fn1

First, Answer ¶¶2 and 12, Answer Count I ¶14 and Answer Count III ¶19 betray a failure to read and follow the plain roadmap marked out by Rule 8(b)(5) as the basis for a disclaimer of the need to comply with Rule 8(b)(1)(B)--see App'x ¶1 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Counsel then compounds his Rule 8(b)(5) violation by going on "and therefore deny the same." That is of course oxymoronic--how can a party that asserts (presumably in good faith) that it "lack[s] sufficient knowledge to admit or deny" an allegation, or even (as Rule 8(b)(1)(B) specifies) "enough information to form a belief as to the truth" of an allegation, then proceed to deny it in accordance with Rule 11(b)? Accordingly the quoted "and therefore..." phrase is stricken wherever it appears in the Answer.

Next, a group of responses (Answer ¶¶2, 3, 4 and 8, Answer Count I ¶16 and Answer Count III ¶19)--or perhaps more accurately nonresponses--display counsel's mindset that what he can label as a legal conclusion or a nonfactual allegation excuses any need to answer, as Rule 8(b)(1)(B) expressly dictates. That is of course nonsense--see, e.g., App'x ¶2 to State Farm. Just to pick an obvious instance, how can RMS fail to admit or to deny unconditionally what it necessarily knows: whether it is a "debt collector" within the meaning of the Act?

Relatedly, counsel seeks self-justification for those same attempted circumventions by claiming "an abundance of caution." That too is bad pleading, for it defeats the basic purpose of notice pleading (which is incumbent on defendants as well as plaintiffs) to identify just what is and just what is not at issue between the litigants.*fn2

As for the ADs, they too are problematic. On that score, defense counsel would do well to read App'x ¶5 to State Farm as well as the uniform caselaw applying Rule 8(c).

In particular, AD 1 seeks to advance what amounts to a Rule 12(b)(6) motion--a doubtful subject under Rule 8(c). But even apart from that general problem, this purported AD flouts the obligation to accept the Complaint's allegations as true for Rule 12(b)(6) purposes. It is stricken without leave to replead.

Next, although AD 2 facially seems to be a potentially viable defense, at least two aspects of AD 3 appear questionable:

1. Counsel's assertion that purported violations of the Act were "technical" totally ignores the purposefully technical nature of the Act, intended to curb what Congress has determined are harassing and abusive collection efforts.

2. Any contention that claimed violations are "de minimis in nature" similarly ignores the congressional decision--for the same reasons--to provide for statutory damages even absent a showing of actual damages.

In summary, the entire pleading is stricken, with leave granted to file an Amended Answer and Affirmative Defenses on or before May 2, 2012. Regrettably, the wholesale violation of fundamental principles of federal pleading identified here appears to reflect the misperception that pleading (if not lawyering in general) is a sort of word game in which the prize goes to the lawyer who obfuscates the issues most. This Court has long mulled over the appropriate judicial response in such situations--for example, a modest monetary sanction would clearly not serve as a deterrent, and any heavier financial imposition would seem inappropriate. What appears preferable here, and what this Court now orders, is this:

1. Defense counsel is not to charge his clients for the time and any expense involved in the preparation and filing of the curative pleading required here.

2. Counsel is also required to provide the clients with a copy of this opinion, coupled with a confirmation of what has been stated in paragraph 1, and to transmit a copy of the forwarding letter to this Court (purely for informational purposes, not for filing).

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