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Swinter Group, Inc. v. Nationwide Truckers' Insurance Agency

United States District Court, E.D. Missouri, Eastern Division

January 5, 2018




         This case is before the Court on Plaintiff's Motion to Strike Defendant's Affirmative Defenses. (Doc. 17). Defendants have not responded to the motion.[1] For the reasons stated below, Plaintiff's motion will be granted in part and denied in part.

         I. Background

         Plaintiff brings this putative class action under the Telephone Consumer Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, 45 U.S.C. § 227. Plaintiff alleges that on September 8, 2015, Defendants sent an unsolicited advertisement to Plaintiff's fax machine. Plaintiff alleges on information and belief that Defendants have sent other advertisements by fax to at least 40 other persons. Plaintiff also alleges that these advertisements lacked the notice required by the TCPA to inform recipients of the ability and means to avoid future unsolicited advertisements. Plaintiff seeks statutory damages of $500 per TCPA violation pursuant to 47 U.S.C. § 227(a)(3)(B), and treble damages of up to $1500 per TCPA violation pursuant to 47 U.S.C. § 227(a)(3). Plaintiff limits the class to all persons in the United States who were sent unsolicited faxes on or after four years prior to the filing of the action.

         On September 18, 2017, Defendants filed their Answer and Affirmative Defenses, in which they asserted several affirmative defenses. Plaintiff filed the instant motion to strike four of those affirmative defenses under Rule 12(f) of the Federal Rules of Civil Procedure. Defendants have not responded to the motion.

         II. Legal Standard

         Rule 12(f) of the Federal Rules of Civil Procedure provides, “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, ” either on its own or on a motion made by a party. The Court has broad discretion in resolving a motion to strike. Stanbury Law Firm v. Internal Revenue Serv., 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.” Speraneo v. Zeus Tech., Inc., 4:12 CV 578 JAR, 2012 WL 2117872, *1 (E.D. Mo. June 11, 2012) (citing Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc., 2008 WL 2817106, at *2 (E.D. Mo. July 21, 2008)).

         Motions to strike are “viewed with disfavor and are infrequently granted.” Stanbury Law Firm, 221 F.3d at 1063 (internal quotation marks omitted). Courts have observed that “motions to strike can be nothing other than distractions. If a defense is clearly irrelevant, then it will likely never be raised again by the defendant and can be safely ignored. If a defense may be relevant, then there are other contexts in which the sufficiency of the defense can be more thoroughly tested with the benefit of a fuller record-such as on a motion for summary judgment.” Shirrell v. St. Francis Med. Ctr., No. 1:13-CV-42 SNLJ, 2013 WL 3457010, at *1 (E.D. Mo. July 9, 2013) (quoting Morgan v. Midwest Neurosurgeons, LLC, No. 1:11-CV-37-CEJ, 2011 WL 2728334, at *1 (E.D. Mo. July 12, 2011)); see also Speraneo, 2012 WL 2117872, at *1 (E.D. Mo. June 11, 2012) (quoting same).

         “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.'” Speraneo, 2012 WL 2117872, at *1 (quoting Cynergy Ergonomics, 2008 WL 2817106, at *2, and citing Fed. Deposit Ins. Corp. v. Coble, 720 F.Supp. 748, 750 (E.D. Mo. 1989)). “A matter is immaterial or impertinent when not relevant to the resolution of the issue at hand.” Schmidt v. Hosley Int'l, Inc., No. 4:15 CV 614 CEJ, 2015 WL 4134338, at *2 (E.D. Mo. July 8, 2015) (quoting McLafferty v. Safeco Inc. Co. of Ind., No. 14-564 DSD/SER, 2014 WL 2009086, at *3 (D. Minn. May 16, 2014)).

         In addition, “a motion to strike should not succeed unless the party shows that it is prejudiced by the inclusion of a defense or that a defense's inclusion confuses the issues.” Id.; see also Shirrell, 2013 WL 3457010, at *1. “The prejudice requirement is satisfied if striking the defense would, for example, prevent a party from engaging in burdensome discovery, or otherwise expending time and resources litigating irrelevant issues that will not affect the case's outcome.” Morgan, 2011 WL 2728334, at *2 (quotation marks omitted). “[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).

         III. Discussion

         A. Affirmative Defense No. 1: Failure to State a Claim Upon Which Relief Can Be Granted

         In their first affirmative defense, Defendants assert that Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff argues that this defense should be stricken because it is not actually an affirmative defense but is rather a defense that asserts a defect in the plaintiff's prima facie case. Regardless of whether this is an affirmative defense, however, Plaintiff has not shown that its inclusion in the pleadings prejudices Plaintiff in any way. The Court finds no reason to believe that such prejudice would exist. Thus, the motion to strike this affirmative defense will be denied. See, e.g., Suzanne Dengnen, DMD, PC v. Dentis, No. 4:17-CV-292 (CEJ), 2017 WL 2021085, at *3 (E.D. Mo. May 12, 2017) (denying motion to strike affirmative defense of failure to state a claim; finding no prejudice and no good reason to strike an otherwise permissible defense on semantic grounds); CitiMortgage, Inc. v. Just Mortg., Inc., No. 4:09 CV 1909 DDN, 2013 WL 6538680, at *8 (E.D. Mo. Dec. 13, 2013) (denying motion to strike affirmative defense of failure to state a claim because “the court perceives no prejudicial effect of burdensome discovery or litigating unnecessary issues by allowing failure to state a claim to remain in defendants' pleadings.”).

         B. Affirmative Defense No. 2: Failure to Mitigate ...

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