United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff's motion to
strike affirmative defenses of defendant Dentis USA
Corporation, pursuant to Fed.R.Civ.P. 12(f). Defendant Dentis
has filed a response in opposition.
filed this action in state court, alleging that it received
an unsolicited fax advertising defendant's products on
October 15, 2015. The fax contained an opt-out notice that
plaintiff claims did not meet regulatory requirements. In
this purported class action under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, plaintiff seeks
statutory damages, injunctive relief, and attorneys'
fees. Defendant removed the action to this Court and filed an
answer and thirty affirmative defenses. Plaintiff moves to
strike defense Nos. 1-3, 7-8, 10-11, 13, 15, and 30.
Rule of Civil Procedure 12(f) provides that a court may
strike from a pleading “any redundant, immaterial,
impertinent, or scandalous matter.” Courts have liberal
discretion to strike pleadings under Rule 12(f).
Nationwide Ins. Co. v. Cent. Mo. Elec. Co-op, Inc.,
278 F.3d 742, 748 (8th Cir. 2001). However, striking a
party's pleading is an extreme measure that is viewed
with disfavor and infrequently granted. Stanbury Law
Firm, P.A. v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000).
“In ruling on a motion to strike, the Court views the
pleadings in the light most favorable to the pleader.”
Shirrell v. St. Francis Med. Ctr., No. 1:13-CV-42
SNLJ, 2013 WL 3457010, at *1 (E.D. Mo. July 9, 2013)
Rule 8(c) governs the pleading of affirmative defenses and
requires a party to “affirmatively state any avoidance
or affirmative defense.” Rule 8(e) specifies that
“[e]ach allegation must be simple, concise, and direct.
No technical form is required.” “The rules do not
require a party to plead every step of legal reasoning that
may be raised in support of its affirmative defense; they
only require a defendant to state in short and plain terms
its defenses to a plaintiff's claims.” Wisland
v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir.
1997) (citing Fed.R.Civ.P. 8(c)). “While [an
affirmative] defense must be asserted in a responsive
pleading, it need not be articulated with any rigorous degree
of specificity, and is sufficiently raised for purposes of
Rule 8 by its bare assertion.” Zotos v.
Lindbergh School Dist., 121 F.3d 356, 361 (8th Cir.
1997) (emphasis in original; citation omitted).
affirmative defense may be pleaded in general terms and will
be held to be sufficient, and therefore invulnerable to a
motion to strike, as long as it gives the plaintiff fair
notice of the nature of the defense.” State of
Missouri v. Charter Commc'ns, Inc., No. 4:15-CV-1593
RLW, 2016 WL 1625461, at *5 (E.D. Mo. Apr. 21, 2016)
(quoting 5 Charles Alan Wright, Federal Practice
& Procedure § 1274 (3d ed. Westlaw 2013)).
“A motion to strike an affirmative defense should not
be granted unless, as a matter of law, the defense cannot
succeed under any circumstances or is immaterial in that it
has no essential or important relationship to the claim for
relief.” Shirrell, 2013 WL 3457010, at *1
(internal quotation and citation omitted). The party filing a
motion to strike must show that it is prejudiced by the
inclusion of a defense or that a defense's inclusion
confuses the issues. Id. “[W]here a challenged
defense fails as a matter of law or is immaterial to the
matter, the resources and time expended to counter such a
defense constitute per se prejudice.” In re RFC
& ResCap Liquidating Trust Litig., No. 13-CV 3520
JRT/HB, 2015 WL 2451254, at *4 (D. Minn. May 21, 2015).
Defenses Inapplicable to TCPA Claims
TCPA “proscribes sending unsolicited advertisements to
fax machines” unless they meet certain exceptions.
St. Louis Heart Ctr., Inc. v. Vein Centers for
Excellence, Inc., No. 4:12 CV 174 CDP, 2017 WL 492778,
at *1 (E.D. Mo. Feb. 7, 2017) (quoting Mims v. Arrow Fin.
Servs. LLC, 132 S.Ct. 740, 745 (2012) (citing 47 U.S.C.
§ 227(b)(1)(C)). “The term ‘unsolicited
advertisement' means any material advertising the
commercial availability or quality of any property, goods, or
services which is transmitted to any person without that
person's prior express invitation or permission, in
writing or otherwise.” Id. (quoting
47 U.S.C. § 227(a)(5)). As relevant here, the statute
prohibits the “use [of] any . . . device to send, to a
telephone facsimile machine, an unsolicited advertisement,
unless . . . the unsolicited advertisement contains a notice
meeting the requirements under paragraph 2(D).”
Nack v. Walburg, 715 F.3d 680, 683 (8th Cir. 2013)
(quoting § 227(b)(1)(C) & (C)(iii)). The
notice must be conspicuous, provide a domestic telephone
number, and identify a cost-free mechanism for the recipient
to opt-out of receiving future “unsolicited
advertisements.” Id. (quoting §
227(b)(2)(D)(i), (iv)(I)-(II). The TCPA “imposes, on
anyone who sends an unsolicited fax advertisement, statutory
damages of $500 per fax, which can be trebled if the
court finds that the violation was willful or knowing.”
Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc.,
821 F.3d 992, 997 (8th Cir. 2016) (emphasis in original)
(quoting Creative Montessori Learning Ctrs. v. Ashford
Gear LLC, 662 F.3d 913, 914 (7th Cir. 2011).
No. 2 and No. 13 - Failure to mitigate and failure to
affirmative defense No. 2, defendant asserts that plaintiff
and the putative class members failed to mitigate or avoid
their damages. Similarly, in affirmative defense No. 13,
defendant asserts that the claim is barred because plaintiff
and the putative class members “failed to notify”
defendant of “the alleged statutory violations at the
time such violations allegedly occurred, which prevented [it]
from taking any action to remedy such violations.”
Courts have determined that recipients of unsolicited faxed
advertisements do not have a duty to mitigate. Springer
v. Fair Isaac Corp., No. 14-CV-02238-TLN-AC, 2015 WL
7188234, at *5 (E.D. Cal. Nov. 16, 2015) (striking
failure-to-mitigate defense); Exclusively Cats Vet.
Hosp., P.C. v. Pharm. Credit Corp., No. 13-CV-14376,
2014 WL 4715532, at *6 (E.D. Mich. Sept. 22, 2014) (where it
was clear plaintiff sought only statutory damages, mitigation
defense “cannot succeed under any
circumstances”); Powell v. W. Asset Mgmt.,
Inc., 773 F.Supp.2d 761, 764 (N.D. Ill. 2011) (listing
cases finding no duty to mitigate under § 227 of the
TCPA). Similarly, “[r]ecipients of unsolicited
facsimile advertisements are not required to ask that senders
stop transmitting such materials.” Holtzman v.
Turza, No. 08 C 2014, 2010 WL 4177150, at *5 (N.D. Ill.
Oct. 19, 2010), aff'd sub nom. Ira Holtzman, C.P.A.
v. Turza, 728 F.3d 682 (7th Cir. 2013); Onsite
Computer Consulting Servs., Inc. v. Dartek Computer Supply
Corp., No. 05AC-000108 I CV, 2006 WL 2771640, at *4 (Mo.
Cir. Ct. May 17, 2006) (“Plaintiff was not required to
mitigate its damages by calling Defendant and asking that the
faxes be stopped.”). Affirmative defenses No. 2 and No.
13 will be stricken.
No. 3 and No. 8 - Statute of Limitations and Laches
affirmative defense No. 8, defendant asserts that
plaintiff's claim “is barred, or limited, by the
applicable statute of limitations” and, further, that
the application of the statute of limitations
“require[s] individualized determinations for each
putative class member . . . thereby precluding class-wide
resolution.” TCPA claims are subject to the four-year
“catch-all” statute of limitations set forth in
28 U.S.C. § 1658(a). Giovanniello v. ALM Media,
LLC, 726 F.3d 106, 115 (2d Cir. 2013); Exclusively
Cats, 2014 WL 4715532, at *4; see also Coniglio v.
Bank of Am., NA, 638 F. App'x 972, 974 n.1 (11th
Cir. 2016) (“The TCPA has a four-year statute of
limitations.”); St. Louis Heart Ctr., Inc. v. Vein
Centers For Excellence, Inc., 860 F.Supp.2d 920, 923
(E.D. Mo. 2012) (statute of limitations for TCPA violations
is four years). The purported class is limited to those who
received a junk fax from defendants “on or after four
years prior to the filing of this action” and, thus,
does not violate the four-year statute of ...