United States District Court, E.D. Missouri, Eastern Division
MARK FITZHENRY, individually and on behalf of all others similarly situated, Plaintiff,
VACATION CONSULTING SERVICES, LLC, BRIAN JAY SCROGGS and JOHN DOES 1-10, Defendants,
SIGNATURE GETAWAYS, LLC, JJ&C MARKETING, LLC, ROGELIO MENDOZA, JR., d/b/a MENDOZA MARKETING and MENDOZA MARKETING, LLC, Third-Party Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Third-Party Plaintiffs Vacation
Consulting Services, LLC and Brian Jay Scroggs' Motion to
Strike Third-Party Defendants Rogelio Mendoza, Jr., d/b/a
Mendoza Marketing and Mendoza Marketing, LLC's
Affirmative Defenses. (ECF No. 53) Third-Party Defendants
Rogelio Mendoza, Jr., d/b/a Mendoza Marketing and Mendoza
Marketing, LLC (collectively "Mendoza Marketing")
have filed a response in opposition, and Third-Party
Plaintiffs Vacation Consulting Services, LLC and Brian Jay
Scroggs (collectively "Third-Party Plaintiffs")
have filed a reply brief. Upon review of the motion and
related memoranda, the Court will grant in part, and deny in
part, Third-Party Plaintiffs' motion.
December 5, 2016, Plaintiff Mark Fitzhenry filed a putative
class action suit in state court alleging violations of the
Telephone Consumer Protection Act, 47 U.S.C. § 227
("TCPA") against Defendants Vacation Consulting
Services, LLC ("VCS"), Brian Jay Scroggs
("Scroggs"), and John Does 1-10. (Petition
[hereinafter "Compl."], ECF No. 6) Plaintiff
alleges that VCS and Scroggs violated the TCPA during a May
25, 2016 automated telephone call. (Id. at ¶
25; see also PL's Mot. to Am. by Interlination
¶3, ECF No. 21) Plaintiff also seeks class certification
for persons called on or after June 12, 2013 on residential
or cellular telephone lines by or on behalf of Defendants VCS
and/or Scroggs in violation of the TCPA. (Compl. ¶ 23)
Defendant VCS removed the case to federal court on February
21, 2017. (ECF No. 1)
Scroggs filed a Third-Party Complaint and an Amended
Third-Party Complaint against several Third-Party Defendants,
including Mendoza Marketing. (ECF Nos. 16, 33) In the First
Amended Complaint and specific to Mendoza Marketing,
Third-Party Plaintiffs allege that VCS entered into an oral
contract with Mendoza Marketing provide marketing services.
(First Am. Compl. ["FAC"] ¶¶ 28-38, ECF
No. 33) Third-Party Plaintiffs further allege that any
telephone calls made to Plaintiff Fitzhenry or other members
of the purported class were made by Third-Party Defendants or
agents acting on their behalf without the knowledge or
control of Third-Party Plaintiffs. (FAC ¶¶ 40-45)
Third-Party Plaintiffs raise claims of breach of contract;
implied contractual and equitable indemnity; and
contribution. Mendoza Marketing filed an Answer on July 28,
2017. (ECF No. 46) On August 18, 2017, Mendoza Marketing
filed a motion to strike Mendoza Marketing's affirmative
defenses pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure, or in the alternative, for a more definite
statement. (ECF No. 53) Mendoza Marketing filed a response in
opposition on September 12, 2017. (ECF No. 58) At the
direction of the Court, Third-Party Plaintiffs filed a reply
brief on January 4, 2018. (ECF No. 78)
12(f) provides that a "court may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." Fed.R.Civ.P. 12(f).
"Parties filing a motion to strike under Fed.R.Civ.P.
12(f) bear the burden of providing the Court any reason why
this language is immaterial, impertinent, or
scandalous." Simms v. Chase Student Loan Servicing,
LLC, No. 4;O8CVOI48O ERW, 2009 WL 943552, at *2 (E.D.
Mo. Apr. 6, 2009) (internal citation omitted). "Although
the Court enjoys 'broad discretion' in determining
whether to strike a party's pleadings, such an action is
'an extreme measure.'" Airstructures
Worldwide, Ltd. v. Air Structures Am. Techs., Inc., No.
4;O9CVIO CDP, 2009 WL 792542, at *1 (E.D. Mo. Mar. 23, 2009)
(quoting St anbury Law Firm v. IRS, 221 F.3d 1059,
1063 (8th Cir. 2000)). "Despite this broad discretion
however, . . . '[m]otions to strike under Fed.R.Civ.P.
12(f) are viewed with disfavor and are infrequently
granted.'" Stanbury Law Firm, 221 F.3d at
1063 (quoting Lunsfordv. United States, 570 F.2d
221, 229 (8th Cir. 1977)).
courts have harshly criticized motions to strike, stating,
'[i]ndeed, 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.'"
Speraneo v. Zeus Tech., Inc., No. 4:12-CV-578-JAR,
2012 WL 2117872, at *1 (E.D. Mo. June 11, 2012) (quoting
Morgan v. Midwest Neurosurgeons, LLC, No. 1:11-CV-37
(CEJ), 2011 WL 2728334, at *2 (E.D. Mo. July 12, 2011)
(citation omitted)). When ruling on a motion to strike, the
Court views the pleadings in the light most favorable to the
pleader and grants such motion only where, "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." Fed. Deposit
Ins. Corp. v. Coble, 720 F.Supp. 748, 750 (E.D. Mo.
1989) (citations and internal quotations omitted). "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."
Morgan, 2011 WL 2728334, at *2 (citation omitted).
'"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.'" Id. (quoting
Cynergy Ergonomics, Inc. v. Ergonomic Partners,
Inc., No. 4:08-CV-243 (JCH), 2008 WL 2817106, at *2
(E.D. Mo. July 21, 2008)).
Motion to Strike Affirmative Defenses, Third-Party Plaintiffs
argue that affirmative defenses 1 through 7 are merely
conclusory allegations that fail to give Third-Party
Plaintiffs fair notice of the nature of the defense. Thus,
Third-Party Plaintiffs' assert that these defenses should
be stricken. Alternatively, Third-Party Plaintiffs request
that the Court order Mendoza Marketing to provide a more
definite statement of each affirmative defense. Mendoza
Marketing responds that they have adequately pled their
respect to affirmative defense 1 alleging that the Court
lacks subject matter jurisdiction, the Court finds that
Mendoza Marketing has adequately pled this defense. "The
Eighth Circuit Court of Appeals has made it clear that
affirmative defenses 'need not be articulated with any
rigorous degree of specificity' and are 'sufficiently
raised for purposes of Rule 8 by its bare
assertion''' State of Missouri v.
Charter Commc'ns, Inc., No. 4:15-CV-1593 PvLW, 2016
WL 1625461, at *6 (E.D. Mo. Apr. 21, 2016) (quoting Zotos
v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir.
defense 2 alleges that the Third-Party Plaintiffs'
Complaint fails to state a claim upon which relief may be
granted. "Failure to state a claim is not a proper
affirmative defense but, rather, asserts a defect in
Plaintiffs' prima facie case." Lakeside Roofing
Co. v. Nixon, No. 4:10CV01761 JCH, 2011 WL 2600421, at
*1 (E.D. Mo. June 29, 2011) (internal quotations and citation
omitted). Thus, the Court finds that Mendoza Marketing's
first affirmative defense is not properly asserted and is
stricken as legally insufficient. Id. Mendoza
Marketing may raise this claim in a motion to dismiss or a
motion for summary judgment.
defenses 3 and 6 allege, respectively, that Third-Party
Plaintiffs are unable to prove damages, and their claims are
barred by intervening causation not attributable to Mendoza
Marketing. Third-Party Plaintiffs contend that these
affirmative defenses are legally insufficient. The Court
finds that affirmative defenses 3 and 6 regarding damages and
causation should not be stricken but, instead, the Court will
order Mendoza Marketing to file an amended answer to plead
these affirmative defenses with more particularity.
Court notes that Third-Party Plaintiffs do not specifically
address affirmative defense 4, and therefore, the ...