United States District Court, S.D. Indiana, Indianapolis Division
EVA M. GREEN Individually and on behalf of all other similarly situated, Plaintiff,
MONARCH RECOVERY MANAGEMENT, INC. a Pennsylvania corporation, DHC CONSULTING SERVICES, LLC a Maryland limited liability company, INTERIM CAPITAL GROUP, INC. an Indiana Corporation (Added per Amended Complaint of 5/23/13.), Defendants.
ORDER ON DEFENDANT'S MOTION FOR LEAVE TO FILE ADDITIONAL AFFIRMATIVE DEFENSES
MARK J. DINSMORE, Magistrate Judge.
This matter comes before the Court on Defendant's Motion for Leave to File Additional Affirmative Defenses. [Dkt. 107.] For the following reasons, the Court DENIES Defendant's motion.
Eva M. Green ("Plaintiff") filed suit against Monarch Recovery Management ("Defendant") on March 13, 2013, alleging Defendant violated the Fair Debt Collection Practices Act ("FDCPA") by sending a debt collection letter to Plaintiff despite knowledge that Plaintiff had legal representation. [Dkt. 1 at 4-5; see 15 U.S.C. § 1692c(a)(2).] Plaintiff filed its Amended Complaint on May 23, 2013, adding claims for violations of 15 U.S.C. § 1692g(a)(2) (failure to identify the name of the current creditor) and 15 U.S.C. § 1692e (making a false statement of the name of the creditor). [Dkt. 22 at 4-5.] On July 25, 2013, with the parties' agreement, [Dkt. 38], the Court approved a Case Management Plan ("CMP") setting an August 13, 2013 deadline for filing motions for leave to amend the pleadings. [Dkt. 39 at 6.]
Defendant moved to dismiss the suit for lack of subject matter jurisdiction, but the Court denied the motion on September 16, 2013. [Dkt. 51 at 1.] The Court then extended the deadline to answer Plaintiff's Complaint until October 4, 2013. [Dkt. 58.] Defendant filed its Answer on October 3, 2013 and presented thirteen affirmative defenses, including "7. Plaintiff has not suffered any actual damages." [Dkt. 57 at 20-21.]
The Court's CMP set a liability discovery deadline of February 7, 2014; a dispositive motion deadline of March 7, 2014; and an expert and damages discovery deadline of July 14, 2014. [Dkt. 39 at 8.] The Court has extended each of these deadlines: the parties were to complete liability discovery by September 19, 2014; file dispositive motions by October 10, 2014; and complete all discovery by December 9, 2014. [Dkt. 110 at 1.] The parties reported that all liability discovery would be completed prior to the September 19, 2014 deadline. [Dkt. 113.]
Defendant deposed Plaintiff on January 17, 2014. [ See Dkt. 114 at 6.] Defendant later served requests for admission asking Plaintiff to admit, inter alia, that she had no evidence supporting her contention that Defendant's letters and phone calls caused her to suffer fatigue, irritability, ulcers, and missed work time. [ See id. at 6-9.] Plaintiff responded with denials on July 31, 2014. [ Id. at 9.] To support the denials, she relied on 1) her January deposition testimony and 2) "digital audio files produced by Monarch" that contained recordings of telephone calls between Plaintiff and Defendant's employees. [ See id. at 6-9.]
Two weeks later, on August 15, 2014, Defendant filed the current motion to amend its Answer to add four affirmative defenses. [Dkt. 107. at 1-4.] In the motion, Defendant stated it had "located and produced certain audio recordings between an employee and the Plaintiff's husband, and another employee and Plaintiff." [ Id. at 2.] Based on the information in these recordings, and based on Plaintiff's reliance on this information in her denials, Defendant seeks to amend its Answer to add defenses fourteen through seventeen as follows:
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff has not suffered any actual damages, and therefore plaintiff lacks standing or capacity to bring or maintain this action.
FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiff and the putative class members lack standing and/or capacity to either bring or maintain this action, or to obtain the relief sought because, inter alia, (1) plaintiffs, and any putative class members, do not fall within the definition of a "debtor" under the Fair Debt Collections Practices Act; (2) the putative class members did not incur obligations for personal, family, or household purposes, and therefore did not incur a "debt" under the Fair Debt Collections Practices Act; and (3) plaintiffs and any putative class members have not been harmed or suffered "injury in fact" by the alleged conduct at issue regardless of whether plaintiffs seeks only statutory damages. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
SIXTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff's husband directed Defendant to contact her, Plaintiff subsequently contacted Monarch directly, and therefore Plaintiff consented to contact ...