United States District Court, E.D. Missouri, Eastern Division
U.S. BANDS & ORCHESTRA SUPPLIES, INC., Plaintiff,
JOHN E. REID and ASSOCIATES, Defendant.
MEMORANDUM AND ORDER STRIKING FAILURE-TO-MITIGATE
D. NOCE, UNITED STATES MAGISTRATE JUDGE.
action is before the court upon the motion of plaintiff U.S.
Bands & Orchestra Supplies, Inc., to strike one of the
affirmative defenses pled by defendant John E. Reid and
Associates. (Doc. 15).
seeks statutory damages against defendant, alleging defendant
sent plaintiff unsolicited advertisements to plaintiff's
facsimile machine, in violation of the Telephone Consumer
Protection Act of 1991, as amended, 47 U.S.C. § 227
(TCPA). (Doc. 1). Defendant's answer included a number of
affirmative defenses, including failure to mitigate damages,
which plaintiff seeks to have stricken by the court. (Doc.
13). “The court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
argues defendant's failure to mitigate affirmative
defense is insufficient as a matter of law. More
specifically, plaintiff argues that the TCPA imposes no duty
on recipients of unsolicited faxed advertisements to mitigate
their damages, that this affirmative defense merely serves as
a diversion, and that its presence in the case is prejudicial
because it will increase plaintiff's required legal work.
responds that striking a defense is an extreme and disfavored
action, citing Stanbury Law Firm v. Internal Rev.
Serv., 221 F.3d 1059, 1063 (8th Cir. 2000). Defendant
argues further that there is no controlling Eighth Circuit or
Supreme Court precedent prohibiting this defense and that
little additional legal work would be required of plaintiff
because other affirmative defenses it has pled encompass the
discovery relevant to the failure to mitigate defense.
have liberal discretion to strike pleadings under Rule 12(f).
Nationwide Ins. Co. v. Cent. Mo. Elec. Co-op, Inc.,
278 F.2d 742, 748 (8th Cir. 2001). However, and as defendant
notes, striking a party's pleading is an extreme measure
viewed with disfavor. Stanbury Law Firm, P.A. v.
IRS, 221 F.3d at 1063. “[T]he Court should refrain
from deciding new or close questions of law on a motion to
strike due to the risk of offering an advisory
opinion.” Cynergy Ergonomics, Inc. v. Ergonomic
Partners, Inc., No. 4:08 CV 243 JCH, 2008 WL 2817106, at
*2 (E.D. Mo. July 21, 2008). On Rule 12(f), the moving party
must show that it is prejudiced by the inclusion of a
defense, but when the challenged defense fails as a matter of
law, prejudice - in the form of the resources and time
expended to counter such a defense - is presumed. Suzanne
Degnan, DMD, PC v. Dentis USA Corp., No. 4:17 CV 292
CEJ, 2017 WL 2021085, at *1 (E.D. Mo. May 12, 2017).
failure to mitigate affirmative defense should be stricken in
this case for several reasons. The TCPA provides that
plaintiffs may recover “actual monetary loss” or
liquidated damages in the amount of “$500 in damages
for each . . . violation, whichever is greater.” 47
U.S.C. § 227(b)(3)(B). In this case, plaintiff has
limited itself to seeking only statutory, liquidated damages.
(Doc. 1). The TCPA does not include any express requirement
that fax recipients mitigate statutorily-prescribed damages.
Compare with 47 U.S.C. § 227(c)(5)(C) (Congress
explicitly provided defendants an affirmative defense if they
“established and implemented, with due care, reasonable
practices and procedures to effectively prevent telephone
solicitations in violation of the regulations prescribed
under this subsection.”).
the agency responsible for administering the TCPA, the
Federal Communications Commission, has confirmed that the
TCPA does not impose a duty to mitigate with respect to the
receipt of unsolicited faxes:
Some of the unsolicited facsimile advertisements provide
consumers with telephone numbers to call to express their
desire not to participate in any future polls and/or to be
removed from the entities' distribution list(s). Faxing
even one advertisement, however, constitutes a violation of
the TCPA and the Commission's Rules if the sender does
not have an established business relationship with the
recipient and/or the recipient's prior express consent to
receive the fax advertisement. Accordingly, recipients of
unsolicited facsimile advertisements are not required to ask
that senders stop transmitting such materials.
FCC, In re 21st Century Fax(es), Ltd., Citation,
Case No. EB-00-TC-001 (March 8, 2000), available at
plaintiff's actual damages could theoretically be greater
than $500 per unsolicited fax, but mitigation would not apply
to the statutory, liquidated damages of $500 per violation
(or up to $1500 for willful or knowing violations). 47 U.S.C.
§ 227(b)(3)(C); see also Ross v. Garner Printing
Co., 285 F.3d 1106, 1113 (8th Cir. 2002) (holding that
mitigation damages ordinarily are inapplicable to liquidated
damages) (applying Iowa law). Although Ross involved
a breach of contract claim, the underlying principle is the
same. It is clear from the complaint that plaintiff seeks
only the statutory damages of $500-$1500 per violation. (Doc.
1, Ex. 1 at ¶ 39(c) and (d)).
because plaintiff is only seeking statutory, liquidated
damages and the TCPA imposes strict liability, and because
neither the TCPA nor the FCC contemplates any duty on the
part of fax recipients to mitigate, the law is sufficiently
clear that this defense cannot succeed in response to the
allegations in this case. See Connector Castings, Inc. v.
Newburg Rd. Lumber Co., No. 4:17 CV 1204 ERW, 2017 WL
3621329, at *2 (E.D. Mo. Aug. 23, 2017); Suzanne
Degnan, 2017 WL 2021085, at *2; see also Powell v.
W. Asset Mgmt., Inc., 773 F.Supp.2d 761, 764 (N.D. Ill.
2011). Its inclusion in this case is therefore prejudicial to
plaintiff, and the interests of judicial economy are best
served by striking this defense at this stage of the
IT IS HEREBY ORDERED that the motion of
plaintiff to strike defendant's eighth affirmative
defense for failure to mitigate damages (Doc. 15) is
sustained. This ...