United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion to
Strike Some of Defendant's Affirmative Defenses, pursuant
to Fed.R.Civ.P. 12(f). Defendant has filed a memorandum in
Connector Castings, Inc., filed this purported class action
in state court on March 29, 2017, alleging it received
unsolicited fax advertisements marketing the products, goods
or services of Defendant Newburg Road Lumber Company
(“Newburg”). Plaintiff seeks injunctive relief,
statutory damages, and treble damages under the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227, as well
as attorneys' fees. Defendant removed the action to this
Court and filed an answer and eleven affirmative defenses.
Plaintiff now moves to strike Defendant's first, second,
eighth, and ninth affirmative defenses.
12(f) of the Federal Rules of Civil Procedure provides a
“court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). Under Rule
12(f), a court has discretion to strike affirmative defenses.
See Lunsford v. United States, 570 F.2d 221, 229
(8th Cir. 1977). Although “[j]udges enjoy liberal
discretion to strike pleadings under Rule 12(f), ” such
an action is viewed as “an extreme and disfavored
measure.” BJC Health Sys. v. Columbia Casualty
Co., 478 F.3d 908, 917 (8th Cir. 2007).
motion to strike should ‘be denied if the defense is
sufficient as a matter of law or if it fairly presents a
question of law or fact which the court ought to
hear.'” Bartoe v. Mo. Barge Line Co., No.
1:07-CV-165, 2009 WL 1118816, at *1 (E.D. Mo. Apr. 24, 2009),
quoting Lunsford, 570 F.2d at 229. “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 of
relief.” Shirrell v. St. Francis Med. Ctr.,
No. 1:13-CV-42 SNLJ, 2013 WL 3457010, at *1 (E.D. Mo. July 9,
2013) (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. “Where 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.” Suzanne
Degn[e]n, DMD, PC v. Dentis USA Corp., No. 4:17-CV-292
(CEJ), 2017 WL 2021085, at *2 (E.D. Mo. May 12, 2017), citing
In re RFC & ResCap Liquidating Trust Litig., No.
13-CV 3520 JRT/HB, 2015 WL 2451254, at *4 (D. Minn. May 21,
noted above, Plaintiff requests this Court strike
Defendant's first, second, eighth, and ninth affirmative
defenses. Plaintiff argues these affirmative defenses are
“legally insufficient as a matter of law” and
Plaintiff is prejudiced by the inclusion of these defenses,
because they require “increased legal work.”
Affirmative Defense No. 1 - First Amendment Violation and
Affirmative Defense No. 2 - Void for Vagueness
first affirmative defense, Defendant asserts, in relevant
part, “The Telephone Consumer Protection
Act…violates the First Amendment of the United States
Constitution on its face and as applied.” Plaintiff
argues this defense is “legally insufficient” and
should be stricken because it has been
“foreclosed” by the Eighth Circuit, citing
Nack v. Walburg, 715 F.3d 680, 682 (8th Cir. 2013).
In Nack, though the Eighth Circuit did state it
“held in Missouri ex rel. Nixon v. Am. Blast Fax,
Inc., 323 F.3d 649, 660 (8th Cir. 2003), the TCPA
provisions regarding unsolicited fax advertisements were not
an unconstitutional restriction upon commercial speech,
” it also noted the holding of that case “would
not necessarily be the same” as applied to
defendant's case. 715 F.3d at 682. However, because the
defendant did not raise the issue with the lower court, the
Eighth Circuit declined to reach the merits of this
“as-applied” challenge to the TCPA. Id.
Thus, Nack did not render Defendant's First
Amendment affirmative defense “legally insufficient,
” and Plaintiff's motion to strike Defendant's
first affirmative defense is denied.
second affirmative defense, Defendant asserts in relevant
part, “The TCPA violates the Fifth and Fourteenth
Amendments of the United States Constitution under the
void-for-vagueness doctrine on its face and as
applied.” Plaintiff argues this defense is
“legally insufficient” because “other
federal courts have ruled the TCPA is not void for
vagueness.” However, Plaintiff cites no precedent from
this Court or the Eighth Circuit to indicate Defendant's
void-for-vagueness affirmative defense would fail as a matter
of law. Accordingly, Defendant fairly presents a matter of
law which this Court should hear, and Plaintiff's motion
to strike Defendant's second affirmative defense is
Affirmative Defense No. 8 - Failure to Mitigate
eighth affirmative defense, Defendant asserts, “Any
claim alleged in the Complaint is barred to the extent
Plaintiff has failed to mitigate its alleged damages.”
This Court and other courts have determined recipients of
unsolicited faxed advertisements have no duty to mitigate or
to ask senders to stop transmitting such advertisements.
Degn[e]n, 2017 WL 2021085, at *2, citing
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); 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.
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