UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Civil Action No.: 1:20-cv-21913-UU

JOSE PADILLA,

 Plaintiff,

v.

GULF COAST COLLECTION 

BUREAU, INC.

 Defendant.

/

DEFENDANT, GULF COAST COLLECTION BUREAU, INC.’S RESPONSE IN 

OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSE 

WITH MEMORANDUM OF LAW

COMES NOW Defendant, GULF COAST COLLECTION BUREAU, INC. (“GCCB”),

by and through its undersigned counsel, and files its Response in Opposition to Plaintiff’s Motion 

to Strike Defendant’s Seventh Affirmative Defense, and pursuant to the Federal Rules of Civil 

Procedure [DE 10], and in support thereof states:

I. Standard under Fed. R. Civ. P. 12(f).

Upon the motion of a party or on its own, "[t]he court may strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. 

P. 12(f). Federal Rules of Civil Procedure 12(f) authorizes a district court to "strike from a pleading 

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. 

Civ. P. 12(f). Although a court has broad discretion when considering a motion to strike, see 

Morrison v. Exec. Aircraft Refinishing Co., 434 F. Supp. 2d 1314, 1317-18 (S.D. Fla. 2005),

striking a defense from a pleading is a drastic remedy generally disfavored by courts. Pujals ex 

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rel. El Rey De Los Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1327 (S.D. Fla. 2011). For that 

reason, a motion to strike an affirmative defense is typically denied unless the defense (1) has no 

possible relation to the controversy, (2) may cause prejudice to one of the parties, or (3) fails to 

satisfy the general pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Nobles 

v. Convergent Healthcare Recoveries, Inc., No. 8:15-CV-1745-T-30MAP, 2015 U.S. Dist. LEXIS 

115448, 2015 WL 5098877, at *1 (M.D. Fla. Aug. 31, 2015).

But district courts disagree over the standard required for pleading affirmative defenses. 

Some courts have held that affirmative defenses are subject to the heightened pleading standard of 

Rule 8(a) set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 

929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). See, 

e.g., In re Checking Account Overdraft Litig., No. 1:09-MD-02036-JLK, 307 F.R.D. 656, 2015 

U.S. Dist. LEXIS 74667, 2015 WL 3551527, at *19 (S.D. Fla. June 8, 2015); Grovenor House, 

L.L.C. v. E.I. Du Pont De Nemours And Co., No. 09-21698-CIV, 2010 U.S. Dist. LEXIS 91905, 

2010 WL 3212066, at *1 (S.D. Fla. Aug. 12, 2010); Castillo v. Roche Labs. Inc., No. 10-20876-

CIV, 2010 U.S. Dist. LEXIS 87681, 2010 WL 3027726, at *2 (S.D. Fla. Aug. 2, 2010). Under this 

standard, an affirmative defense that "merely offer[s] labels and conclusions or a formulaic 

recitation of the elements of a cause of action will not do." Adams v. JP Morgan Chase Bank, N.A., 

No. 3:11-CV-337-J-37MCR, 2011 U.S. Dist. LEXIS 79366, 2011 WL 2938467, at *2 (M.D. Fla. 

July 21, 2011) (citation omitted). Instead, a defense would have to contain enough factual matter 

to "raise a right to relief above the speculative level." Id. (citation omitted).

Other courts, however, have held that the heightened pleading standard of Twombly and 

Iqbal does not apply to affirmative defenses. See, e.g., Tarasewicz v. Royal Caribbean Cruises 

Ltd., No. 14-CIV-60885, 2015 U.S. Dist. LEXIS 45923, 2015 WL 1566398, at *2 (S.D. Fla. Apr. 

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8, 2015); Sparta Ins. Co. v. Colareta, No. 13-60579-CIV, 2013 U.S. Dist. LEXIS 146700, 2013 WL 

5588140, at *1 (S.D. Fla. Oct. 10, 2013); Gonzalez v. Midland Credit Mgmt., Inc., No. 6:13-CV1576-ORL-37, 2013 U.S. Dist. LEXIS 160093, 2013 WL 5970721, at *3 (M.D. Fla. Nov. 8, 2013); 

Ramnarine v. CP RE Holdco 2009-1, LLC, No. 12-61716-CIV, 2013 U.S. Dist. LEXIS 60009, 2013 

WL 1788503, at *1 (S.D. Fla. Apr. 26, 2013); Adams v. JP Morgan Chase Bank, N.A., No. 3:11-

cv-337-J-37MCR, 2011 U.S. Dist. LEXIS 79366, 2011 WL 2938467, at *2-3 (M.D. Fla. July 21, 

2011); Floyd v. SunTrust Banks, Inc., No. 1:10-CV-2620-RWS, 2011 U.S. Dist. LEXIS 65190, 2011 

WL 2441744 (N.D. Ga. June 13, 2011); Jackson v. City of Centreville, 269 F.R.D. 661 (N.D. Ala. 

2010); Blanc v. Safetouch, Inc., No. 3:07-cv-1200-J-25TEM, 2008 U.S. Dist. LEXIS 68158, 2008 

WL 4059786, at *1 (M.D. Fla. Aug. 27, 2008). 

In support, these courts point to the differences between Rule 8(a), which governs the 

pleading of claims, and Rules 8(b) and (c), which apply to affirmative defenses. Sparta, 2013 U.S. 

Dist. LEXIS 146700, 2013 WL 5588140, at *2. Rule 8(a)(2) requires that a claim for relief contain 

"a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 

8(b)(1)(A) provides only that, when responding to a pleading, a party must "state in short and 

plain terms its defenses to each claim asserted against it." Id.; see also Fed. R. Civ. P. 8(a)(2), 

(b)(1)(A). Similarly, Rule 8(c) requires a party to "affirmatively state any avoidance or affirmative 

defense." Sparta, 2013 U.S. Dist. LEXIS 146700, 2013 WL 5588140, at *2; see also Fed. R. Civ. 

P. 8(c).

Courts offer justifications for applying a less stringent standard to affirmative defenses. 

First, these courts maintain that the Twombly standard is rooted in Rule 8(a)'s "showing" 

requirement. See, e.g., E.E.O.C. v. Joe Ryan Enterprises, Inc., 281 F.R.D. 660, 662 (M.D. Ala. 

2012) (citing cases). As proof, they cite various parts of the Twombly opinion, including one 

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particularly telling passage where the United States Supreme Court explains that "Rule 8(a)(2) still 

requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Sparta, 2013 U.S. 

Dist. LEXIS 146700, 2013 WL 5588140, at *3 (quoting Twombly, 550 U.S. at 555 n.3). Juxtaposing 

the "showing" language in Rule 8(a) with the "stating" language in Rules 8(b) and (c), these same 

courts then point out the difference between requiring the statement of something and requiring 

the showing of something:

"To state" means "[t]o set forth in words; declare," while "to show" refers to the 

practice of "demonstrat[ing] by reasoning or procedure" or "demonstrat[ing] to 

by reasoning or procedure; inform[ing] or prov[ing] to: showed him how to fix 

the camera; showed her that it could really happen." Thus, showing requires 

significantly more than stating alone.

Id. (internal citations omitted).

Second, relying on well-settled principles of statutory construction, courts applying a lower 

pleading standard to affirmative defenses maintain that,

if the drafters of Rule 8 had intended for the "showing" requirement to 

apply to the pleading of defenses, they knew how to say it, as 

demonstrated by Rule 8(a), and would have written that requirement 

into Rules 8(b) and (c). The drafters of Rules 8(b) and (c) having not 

done so, these courts reason, the judiciary is not free to engraft the 

"showing" requirement onto these rules itself. Thus, these courts 

conclude, where, as with Rule 8, the language of the provision being 

construed is clear, the analysis ends with the language, and the court 

may not take into account policy considerations.

While the Eleventh Circuit has addressed affirmative defenses, it has not extended the 

pleading requirements of Rule 8(a) beyond claims. Rather, the appeals court has stressed that 

notice is the main purpose of Rule 8(c). See Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th 

Cir.1988) ("The purpose of Rule 8(c) is simply to guarantee that the opposing party has notice of 

any additional issue that may be raised at trial so that he or she is prepared to properly litigate 

it."). In fact, in Hassan, the Eleventh Circuit allowed the defendant to raise an affirmative defense 

it did not even plead because the plaintiff had notice. Id.; see also Hewitt v. Mobile Research Tech., 

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Inc., 285 F. App'x 694, 696 (11th Cir. 2008) ("When a plaintiff has notice that an affirmative 

defense will be raised at trial, the failure of defendant to plead the affirmative defense does not

prejudice the plaintiff, and it is not error for the district court to hear evidence on the issue.").

In Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 2015 U.S. Dist. LEXIS 129365 at *9 

(September 15, 2015), Judge K. Michael Moore stated “Based on these rationales, this Court joins 

the growing number of courts in this circuit and others in finding that a lower pleading standard 

applies to affirmative defenses. Such an approach is faithful both to the letter and the spirit of Rules 

8(b) and (c), as revealed through the plain language of Rule 8 and Eleventh Circuit precedent.” 

II. Motions to Strike Are Disfavored

However, striking a defense is a "'drastic remedy[,]' which is disfavored by the courts." 

Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002)

(quoting Augustus v. Bd. of Pub. Instruction of Escambia Cnty., 306 F.2d 862, 868 (5th Cir. 1962)).

"A motion to strike an affirmative defense will 'usually be denied unless the allegations have no 

possible relation to the controversy and may cause prejudice to one of the parties.'" Seybold v. 

Clapis, 966 F. Supp. 2d 1312, 1314 (M.D. Fla. 2013) (quoting Story v. Sunshine Foliage World, 

Inc., 120 F. Supp. 2d 1027, 1030 (M.D. Fla. 2000)). A motion to strike is a drastic remedy generally 

disfavored by the courts and will ordinarily be denied unless the material sought to be stricken is 

insufficient as a matter of law. Guarantee Ins. Co., v. Brand Mgmt. Service, Inc., No. 12-61670-

CIV, 2013 U.S. Dist. LEXIS 119439, 2013 WL 4496510 * 2 (S.D. Fla.); Guididas v. Community 

National Bank Corp., No. 8:11-cv-2545-T-30TBM, 2013 U.S. Dist. LEXIS 8474, 2013 WL 

230243 * 1 (M.D. Fla.); Gesell v. K-Mart Corp., No. 2:11-cv-130-FtM-36SPC, 2011 U.S. Dist. 

LEXIS 92405, 2011 WL 3628878 * 1 (M.D. Fla.); Williams v. Asplundh Tree Expert Co., No. 

3:05-cv-479-J-20MCR, 2006 U.S. Dist. LEXIS 60319, 2006 WL 2474042 * 2 (M.D. Fla.). 

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In Reyher v. Trans World Airlines, Inc., 881 F.Supp. 574, 576 (M.D. Fla. 1995), the court 

explained that it would "not exercise its discretion under the rule to strike a pleading unless the 

matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, 

or otherwise prejudice a party." Because this is a difficult standard to satisfy, "[m]otions to strike 

are generally disfavored by the Court and are often considered time wasters." Somerset 

Pharms., Inc., v. Kimball, 168 F.R.D. 69, 71 (M.D. Fla. 1996). When it evaluates a motion to 

strike, the court "must treat all well pleaded facts as admitted and cannot consider matters beyond 

the pleadings." Florida Software Systems v. Columbia/HCA Healthcare Corp., No. 97-2866-cvT-17B, 1999 U.S. Dist. LEXIS 15294, 1999 WL 781812 *1 (M.D. Fla.). "An affirmative defense 

is insufficient as a matter of law only if: (1) on the face of the pleadings, it is patently frivolous, or 

(2) it is clearly invalid as a matter of law." Microsoft Corp. v. Jesse's Computers & Repair, Inc., 

211 F.R.D. 681, 683 (M.D. Fla. 2002) (citing Anchor Hocking Corp. v. Jacksonville Elec. Auth., 

419 F. Supp. 992, 1000 (M.D. Fla. 1976)).

III. Seventh Affirmative Defense under the FDCPA and/or FCCPA

Regularly, the federal district courts within the Southern District of Florida preside over 

lawsuits asserting violations of the federal Fair Debt Collection Practices Act (“FDCPA”) and 

similar claims under Florida’s Consumer Collection Practices Act (“FCCPA”). These lawsuits are 

normally filed by the same consumer protection lawyers and also defended by the same debt 

collection defense lawyers. Those individuals regularly file affidavits in support of attorney’s fee 

entitlement asserting their experience in the areas of consumer protection litigation, including 

knowledge and experience in litigating FDCPA/FCCPA claims. In this case, there are at least four 

separate lawyers from three law firms representing the Plaintiffs. Primarily, the motion filed in 

this matter, Thomas Patti and Jibrael Hindi of the Law Offices of Jibrael Hindi, serve as counsel 

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for the Plaintiff. In firm’s website, a substantial amount of the firm’s area of practice is devoted 

to representing consumers in matters relating the Fair Debt Collection Practices Act (“FDCPA”) 

by stating “To protect consumers from Miami debt collection harassment, the Consumer Financial 

Protection Bureau and attorneys like us enforce the Fair Debt Collection Practices Act (FDCPA) 

and the Telephone Consumer Protection Act (TCPA)”

Given the lower standard under Rule 8(c), sufficient information and description of the 

affirmative defenses contained in Defendant’s First Amended Answer and Affirmative Defenses 

should adequately put plaintiffs’ counsel on notice of the specific affirmative defenses to the 

asserted FDCPA and FCCPA allegations against Defendant. 

A. FDCPA/FCCPA Bona Fide Error Defense

On June 2, 2020, Plaintiff, by and through counsel, filed a Motion to Strike solely aimed 

at Defendant’s seventh affirmative defense referred to as the “Bona Fide Error” Defense. The 

‘bona fide error’ defense is provided specifically within FDCPA in Section 1692k(c) which states:

A debt collector may not be held liable in any action brought under 

this subchapter if the debt collector shows by a preponderance of 

evidence that the violation was not intentional and resulted from a 

bona fide error notwithstanding the maintenance of procedures 

reasonably adapted to avoid any such error.

Experienced litigators of consumer protections statutes, particularly the Fair Debt 

Collection Practices Act (“FDCPA”) and Florida’s Consumer Collection Practices Act 

(“FCCPA”), should be at least generally familiar with the statute’s “bona fide error” defense. As 

such, courts have considered similar attempts to strike this defense in FDCPA and FCCPA 

litigation. For example, in Gonzalez v. Midland Credit Mgmt., Inc., No. 6:13-CV-1576-ORL37TBS, 2013 U.S. Dist. LEXIS 160093, 2013 WL 5970721, at *2 (M.D. Fla. Nov. 8, 2013) and 

George v. Leading Edge Recovery Solutions, LLC, 2013 U.S. Dist. LEXIS 100602 *; 2013 WL 

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3777034 (M.D. Fla. July 18, 2013) are examples of rulings on denying motions to strike this basic 

affirmative defense pursuant to the FDCPA and/or FCCPA. In Gonzalez, the defendant Midland, 

asserted as follows: 

FOURTH DEFENSE

Any violation of the FCCPA or FDCPA, which Midland denies, 

was not intentional and resulted from a bona fide error 

notwithstanding the maintenance of procedures reasonably 

adapted to avoid any such error.

This recitation is not only the elements of proof for the affirmative defense but also the 

language from the statutes themselves. The Court in Gonzalez found that Defendant's affirmative 

defenses provided Plaintiff with fair notice of what affirmative defenses Defendant intends to 

raise and thus denied Plaintiff’s motion to strike. Similarly, Judge Bucklew in George, held the 

same. Here, Defendant’s Fifth and Seventh Affirmative Defense address the “bona fide error” for 

each statute. 

Fifth Affirmative Defense

Defendant affirmatively alleges that the alleged actions of the 

Defendant and its agents and employees are protected by the “bona 

fide error” defense pursuant to Section 1692k of the Fair Debt 

Collection Practices Act (FDCPA) because such actions or 

inactions, if they occurred were not intentional and resulted from a 

bona fide error notwithstanding the Defendant’s maintenance of 

procedures reasonably adapted to avoid such errors. George v. 

Leading Edge Recovery Solutions, LLC, 2013 U.S. Dist. LEXIS 

100602 *; 2013 WL 3777034 (M.D. Fla. July 18, 2013) (These 

assertions are legally sufficient to place Plaintiffs on fair notice of 

the facts and grounds of the defense. Plaintiffs' motion to strike the 

third affirmative defense is denied.): Harris v. Nationstar Mortgage, 

LLC, 2014 U.S. Dist. LEXIS 66346 * (M.D. Fla. April 23, 2014)

The affirmative defense statement satisfies the “notice pleading” requirement of Rule 8(c) 

and any additional factual support or investigation to support the defense should be accomplished 

during the discovery phrase of the case.

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Section 1692k(c) of the FDCPA provides for the "bona fide error" defense. 15 U.S.C. § 

1692k(c). "A debt collector asserting the bona fide error defense must show by a preponderance 

of the evidence that its violation of the Act: (1) was not intentional; (2) was a bona fide error; and 

(3) occurred despite the maintenance of procedures reasonably adapted to avoid any such error." 

Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350, 1352-53 (11th Cir. 2009) (citing 

Johnson v. Riddle, 443 F.3d 723, 727-28 (10th Cir. 2006)). Also, the FCCPA provides for the bona 

fide error defense. Fla. Stat. § 559.77(3) ("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.").

Despite Plaintiff's allegation that Defendant's affirmative defense is legally insufficient, 

Defendant has pleaded the three elements necessary to establish the bona fide error defense. At 

this early stage of the litigation and without the benefit of discovery, it is too early to know whether 

Defendant can establish this defense by a preponderance of the evidence. As Rules 8(b) and 8(c)

do not require Defendant to plead detailed factual allegations, Defendant's affirmative defense 

sufficiently puts Plaintiff on notice of the defense. Accordingly, Defendant respectfully requests 

that Plaintiff's motion to strike Defendant's this affirmative defense should be denied. See also: 

Harris v. Nationstar Mortgage, LLC, 2014 U.S. Dist. LEXIS 66346 (M.D. Fla. April 23, 2014)

Significant time and expense has been incurred to discuss and attempt to resolve any issues 

relating to the affirmative defense and certainly, given counsel’s practice areas, experience, intent 

to avoid the defense and move right to “strict liability” judgment, the exercise of opposing a motion 

to strike is a waste of time and resources for both the court and the Defendant. Therefore, 

Defendant requests the court to deny Plaintiff’s motion to strike the affirmative defense for “bona 

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fide error.” If the court is inclined to grant Plaintiff’s motion, Defendant requests leave to amend 

accordingly. 

WHEREFORE, based on the foregoing, Defendant, GULF COAST COLLECTION 

BUREAU, INC., respectfully requests the court to deny Plaintiff’s Motion to Strike Defendant’s 

Seventh Afirmatve Defense. In the alternative, if the court finds that any of the stated Affirmative 

Defenses to be insufficient, Defendant requests leave to amend the subject affirmative defense(s) 

to revise accordingly.

Dated: June 16, 2020

Respectfully submitted, 

/s/ Ernest H. Kohlmyer, III

Ernest H. Kohlmyer, III

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been electronically filed on June

16, 2020, via the Clerk of Court’s CM/ECF system which will provide electronic notice to all 

counsel of record.

/s/ Ernest H. Kohlmyer, III 

Ernest H. Kohlmyer, III

Florida Bar No.: 0110108

SKohlmyer@shepardfirm.com

Shepard, Smith, Kohlmyer & Hand, P.A.

2300 Maitland Center Parkway, Suite 100

Maitland, Florida 32751

Phone: (407) 622-1772

Fax: (407) 622-1884

Attorneys for Defendant

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