United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Steven
Goldsmith's Motion to Strike Defendants' Answer [Doc.
No. 19] and Motion to Strike Defendants' Affirmative
Defenses [Doc. No. 20]. Defendants oppose each Motion, and
the matters are fully briefed. For the reasons articulated
below, Plaintiff's Motion to Strike Defendants'
Answer is denied, and Plaintiff's Motion to Strike
Defendants' Affirmative Defenses is denied in part and
granted in part.
initially filed a Petition in the Circuit Court for St. Louis
County, Missouri. Defendants removed the action to federal
court pursuant to 28 U.S.C. §§ 1441, 1446, and the
Class Action Fairness Act of 2005, 28 U.S.C. §§
1332(d) and 1453. Plaintiff filed his six-count First Amended
Class Action Complaint (“Amended Complaint”) with
this Court on July 3, 2019. Defendants filed their Answer
including affirmative defenses on July 16.
Amended Complaint, Plaintiff alleges that Defendants
overcharged him and other similarly situated St. Louis
Post-Dispatch subscribers by “double billing,
” that is, including the same day in more than one
billing period. Plaintiff alleges breach of contract (Count
I), breach of the implied covenant of good faith and fair
dealing (Count II), unjust enrichment (Count III), money had
and received (Count IV), violation of the Missouri
Merchandising Practices Act, §407.010 et seq.
(“MMPA”) by means of unfair practices (Count V),
and violation of the MMPA by means of deception (Count VI).
their Answer, Defendants deny Plaintiff's allegations
regarding improper or double billing. They also deny the
allegation that they acted unethically or unlawfully. The
Answer sets forth 16 paragraphs of affirmative defenses, 12
of which Plaintiff now moves to strike. Plaintiff also moves
to strike 19 paragraphs from Defendants' Answer.
Rule 12(f), “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” The Court enjoys
liberal 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., 4:12CV578 JAR, 2012 WL 2117872, at *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 (quotations omitted). Criticizing motions to
strike, District Courts have stated 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. 1:13CV42 SNLJ, 2013 WL 3457010,
at *1 (E.D. Mo. July 9, 2013) (quoting Morgan v. Midwest
Neurosurgeons, LLC, No. 1:11CV37 CEJ, 2011 WL 2728334,
*1 (E.D. Mo. July 12, 2011)); Speraneo v. Zeus Tech.,
Inc., 4:12CV578 JAR, 2012 WL 2117872, *1 (E.D. Mo. June
11, 2012) (quoting same).
moving to strike an answer, “a plaintiff must show that
the allegations being challenged in the defendant's
answer are ‘so unrelated to the plaintiff's claims
as to be unworthy of any consideration as a defense and that
their presence in the pleading throughout the proceeding will
be prejudicial to the moving party.”' Sobba v.
Elmen, 462 F.Supp.2d 944, 946 (E.D. Ark. 2006) (quoting
5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil § 1382 (3d. ed. 2004)).
“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 Federal Deposit Ins. Corp. v.
Coble, 720 F.Supp. 748, 750 (E.D. Mo.1989)).
order to prevail on a 12(f) motion, the moving party must
also show prejudice. U.S. Liability Ins. Co. v. Global
Acquisitions, LLC, No. 4:14CV1887 RWS, 2015 WL 2354063,
at *1 (E.D. Mo. May 15, 2015). “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.” Cynergy Ergonomics, 2008
WL 2817106, at *2.
to Strike Defendants' Answer
moves to strike paragraphs 37-55 from Defendants' Answer.
These paragraphs respond to Plaintiff's allegations
regarding the purported ethical standards of the Direct
Marketing Association and American Marketing Association. To
each of these allegations, Defendants replied:
Defendants deny double-billing or improperly billing
subscribers for newspapers and related materials they
receive; deny that they ever acted unethically or unlawfully;
deny that [DMA or AMA] principles establish any legal or
ethical duty Defendants owe subscribers; deny that [DMA or
AMA] principles are relevant or material herein; deny that
they violated any [DMA or AMA] principle or standard; deny
that they ever represented that they adhered to any [DMA or