United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Plaintiff's Motion to Strike
Defendant's Affirmative Defenses. (Doc. 17). Defendants
have not responded to the motion. For the reasons stated
below, Plaintiff's motion will be granted in part and
denied in part.
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.
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.
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)).
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).
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)).
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).
Affirmative Defense No. 1: Failure to State a Claim Upon
Which Relief Can Be Granted
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.”).
Affirmative Defense No. 2: Failure to Mitigate ...