United States of America et al v. Dish Network LLC

Filing 305

OPINION entered by Judge Sue E. Myerscough on 5/23/2013. Plaintiffs' Motion to Strike Dish's Insufficient Defenses Pursuant to Fed. R. Civ. P. 12(f), d/e 276 is DENIED. (MAS, ilcd)

E-FILED

Friday, 24 May, 2013 05:01:02 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES OF CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiffs,
v.
DISH NETWORK, L.L.C.,
Defendant,

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on the Motion to Strike Dish’s
Insufficient Defenses Pursuant to Federal Rule of Civil Procedure 12(f)
(Motion to Strike) (d/e 276) filed by Plaintiffs United States of America
and the States of California, Illinois, North Carolina, and Ohio.
Plaintiffs’ Motion is DENIED. At this point in the litigation, the Motion
to Strike only serves to delay the proceedings, and Plaintiffs received fair
notice of the nature of the defenses.
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I. BACKGROUND
This action was originally filed in March 2009. In April 2009,
Plaintiffs filed a First Amended Complaint and Demand for Jury Trial
(d/e 5) containing eleven counts. Count I alleged that Defendant called
telephone numbers on the “Do Not Call” List and caused its dealers to
do the same. Count II alleged that Defendant abandoned outbound calls
and caused dealers to do the same. Count III alleged that Defendant
provided substantial assistance and support to certain dealers when
Defendant knew or consciously avoided knowing that dealers were
abandoning outbound calls in violation of the Telemarketing Sales Rule.
Counts IV and V alleged violations of the Telephone Consumer
Protection Act. In Counts VI through XI, each state Attorney General
sought relief under the state’s respective statute prohibiting these forms
of telephone solicitations.1 In December 2009, Defendant filed an

In February 2011, the Court stayed all proceedings related exclusively to the
Telephone Consumer Protection Act matters and ordered the parties to jointly file an
administrative complaint with the Federal Communications Commission seeking an
interpretation of the phrase “on behalf of.” See Opinion (d/e 86).

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Answer and Affirmative Defenses which contained 13 affirmative
defenses. See Answer (d/e 26).
On March 12, 2013, Plaintiffs filed their Second Amended
Complaint and Demand for Jury Trial (d/e 257), adding a new Count II,
which alleged that Defendant violated the entity-specific do-not-call rule.
On March 29, 2013, Defendant filed an Answer to the Second Amended
Complaint and Affirmative Defenses (d/e 263). The affirmative defenses
included all of the affirmative defenses raised in the first Answer plus an
additional 11 affirmative defenses.
Plaintiffs have now filed a Motion to Strike 14 of Defendant’s
affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f).
II. LEGAL STANDARD
Rule 12(f) provides that “the court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). As a general rule, motions to
strike are disfavored because such motions often serve only to delay
proceedings. See Heller Financial, Inc. v. Midwhey Powder Co., Inc.,
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883 F.2d 1286, 1294 (7th Cir. 1989) (citing United States v. 416.81
Acres of Land, 514 F.2d 627, 631 (7th Cir. 1975)). The Court is
“reluctant to strike affirmative defenses because the plaintiff is not
required to file a responsive pleading and is deemed to have denied all
allegations in the affirmative defenses.” Central Laborers’ Pension,
Welfare & Annuity Funds v. Parkland Environmental Group, Inc., 2011
WL 4381429, at *1 (C.D. Ill. 2011) (citing Fed.R.Civ.P. 7(a) and
8(b)(6)). However, if a motion to strike removes unnecessary clutter
from the case, it can serve to expedite, not delay. See Heller Financial,
Inc., 883 F.2d at 1294.
“Ordinarily, defenses will not be struck if they are sufficient as a
matter of law or if they present questions of law or fact.” Heller
Financial, Inc., 883 F.2d at 1294. To be legally sufficient, affirmative
defenses must be set forth in a “short and plain statement” of the
defense. Id. (citing Fed.R.Civ.P. 8(a); Bobbitt v. Victorian House, Inc.,
532 F. Supp. 734, 737 (N.D. Ill. 1982)). Defenses that are essentially
reiterations of the defendant’s answers are redundant and may be struck.
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See Convergence Aviation, Ltd. v. United Technologies Corp., 2011 WL
1337099, at *2 (N.D. Ill. 2009). If an affirmative defense is defective,
leave to amend should be freely granted as justice requires under Federal
Rule of Civil Procedure 15(a). See Heller Financial, Inc., 883 F.2d at
1294. This Court has broad discretion when determining whether to
strike an affirmative defense under Rule 12(f). See Delta Consulting
Group, Inc. v. R. Randle Construction, Inc., 554 F.3d 1133, 1141-42
(7th Cir. 2009).
III. ANALYSIS
In their Motion to Strike Affirmative Defenses, Plaintiffs assert that
the First, Second, Third, Fifth, Sixth, and Sixteenth Affirmative Defenses
are not sufficiently pled. Plaintiffs also assert that the Seventh, Eighth,
Ninth, Tenth, Eleventh, Twelfth, and Thirteenth Affirmative Defenses
fail as a matter of law. Finally, Plaintiffs assert that the Twenty-Fourth
Affirmative Defense is not a defense.
Defendant responds that nearly all of the affirmative defenses
Plaintiffs now seek to strike have been at issue since 2009 when
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Defendant filed its first Answer. The only “new” affirmative defenses
Plaintiffs seek to strike are the Sixteenth Affirmative Defense (safe
harbor defense), which is substantially similar to the Sixth Affirmative
Defense, and the Thirteenth Affirmative Defense (res judicata), which
the Court expressly granted Defendant leave to assert. Defendant asserts
that Plaintiffs have, therefore, had three years to conduct discovery
regarding the affirmative defenses Plaintiffs now seek to strike.
Defendant also points out that discovery is closed, other than on the new
claim alleged in the new Count II. Finally, Defendant asserts that the
affirmative defenses are sufficient, and Plaintiffs are not prejudiced.
In an exercise of this Court’s discretion, the Motion to Strike is
denied. At this point in the litigation, the Motion to Strike only serves
to delay the proceedings. Moreover, the defenses give Plaintiffs fair
notice of the nature of the defenses, particularly in light of the fact that
Plaintiffs have had the opportunity to explore the basis of the defenses
during discovery. See, e.g., Green v. Kubota Tractor Corp., 2012 WL
1416465, at *3 (N.D. Ill. 2012) (finding that while the affirmative
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defenses contained minimal facts, the Second Amended Complaint and
the Answer put the plaintiffs on notice of the events on which the
defenses were based and the plaintiffs had ample opportunity to explore
the basis for the defenses in discovery, which had been completed);
Codest Eng’g v. Hyatt Int’l Corp., 954 F. Supp. 1224, 1228 (N.D. Ill.
1996)(“generally pleaded defenses have long been held sufficient, and
invulnerable to a motion to strike, as long as the pleading gives the
plaintiff fair notice of the nature of the defense”).
IV. CONCLUSION
For the reasons stated, Plaintiffs’ Motion to Strike Dish’s
Insufficient Defenses Pursuant to Fed.R.Civ.P. 12(f) (d/e 276) is
DENIED.
ENTER: May 23, 2013
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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