FLORENCE MUSSAT, M.D., S.C. v. Power Liens LLC
Filing
87
MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 10/6/2014:Mailed notice(rth, )
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FLORENCE MUSSAT, M.D., S.C., an
Illinois corporation, individually and on
behalf of a class,
Plaintiffs,
v.
POWER LIENS, LLC,
Defendant.
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No. 13-cv-7853
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
On August 13, 2014, Florence Mussat, M.D., S.C. (“Mussat”), filed a motion to strike
defendant Power Liens’ ten affirmative defenses [46]. For the reasons stated herein, the motion is
granted in part and denied in part.
Background
Mussat filed the instant lawsuit after receiving a one-page fax from Power Liens, which
Mussat claims violates the Telephone Consumer Protection Act (“TCPA”), 42 U.S.C. § 227 et seq.,
and the Illinois Consumer Fraud Act (“ICFA”), 815 ILCS § 505/2 et seq. The bottom of the fax
instructs recipients to contact Power Liens, “[f]or information on how to secure an exclusive zone in
your territory and locking out your nearby competition…”. Mussat alleges this fax is part of a
marketing campaign to sign up physicians for a preferred listing on Power Liens’ website in
exchange for a monthly fee. Mussat also alleges that it has never had a business relationship with
Power Liens and has not consented to receipt of the fax. Mussat estimates that this fax has been
sent to 40 other individuals or businesses.
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Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(f) the district may strike affirmative defenses
that are conclusory, vague, and unsupported because they do not meet the requirements imposed by
Rule 8(a). Heller Fin’l Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). A motion
under Rule 12(f) must be filed “within 21 days after being served with the pleading” and allows a
court to strike any “redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
Affirmative defenses are pleadings and, therefore, are subject to all of the pleading requirements of
the Federal Rules of Civil Procedure. Heller, 883 F.2d at 1294. Affirmative defenses must also
contain sufficient factual material that, when taken as true, state a defense that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1939, 173 L.Ed. 2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007)). An affirmative defense
is an admission of the facts alleged in the complaint, coupled with an assertion of some other reason
that the defendant is not liable. See, e.g., Bobbitt v. Victorian House, Inc. 532 F.Supp.734, 736 (N.D. Ill.
1982).
Generally, motions to strike affirmative defenses are disfavored because of their tendency to
delay the proceedings. Heller, 883 F.2d at 1294. Such motions will only be granted where they
remove unnecessary clutter from the case or where the affirmative defense is insufficient on the face
of the pleadings. Id. Even where a motion to strike is granted, leave to amend the pleadings is to be
freely granted as justice requires. Fed.R.Civ.P. 15(a). Striking of an affirmative defense does not
necessarily preclude the party from asserting or arguing its substantive merits later in the case.
Palomares et al v. Second Federal Savings & Loan Ass’n of Chicago, 2011 U.S. Dist. LEXIS 56949, *5 (N.D.
Ill. May 25, 2011)(citing Instituto Nacional De Comercializacion Agricola (Indeca) v. Cont’l Ill. Nat’l Bank &
Trust Co., 576 F. Supp. 985, 988 (N.D. Ill. 1983)).
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Discussion
Mussat moves to strike all ten of Power Liens’ affirmative defenses. Power Liens voluntarily
withdraws its Third – Eighth affirmative defenses, but asserts that this Court should not strike its
First, Second, Ninth, and Tenth affirmative defenses.
First Affirmative Defense
“Plaintiff’s claims, and those of any putative class member, are barred to the extent that
Plaintiff and putative class members had an established business relationship with Defendant.” (Def.
Answer, Dkt. 44).
Second Affirmative Defense
“Plaintiff’s claims, and those of any putative class member, are barred to the extent that
Plaintiff and putative class members affirmatively consented to receive fax communications from
Defendant.” Id.
Ninth Affirmative Defense
“Plaintiff’s claims, in whole or in part, are barred for failure to state a claim upon which
relief may be granted.” Id.
Tenth Affirmative Defense
“Plaintiff’s claims, in whole or in part, are barred to the extent that Defendant’s conduct as
alleged by Plaintiff was not violative of the TCPA.”
This Court grants Mussat’s motion to strike the Ninth and Tenth affirmative defenses and
denies the motion to strike the First and Second affirmative defenses. Mussat argues that the First
and Second affirmative defenses are merely denials and therefore are not proper affirmative
defenses. However, “[i]f a defendant makes the mistake of pleading matter as an affirmative defense
that could have been raised by denial, there is no reason to penalize him either by granting a motion
to strike, which will not promote the disposition of the case on the merits, or by shifting the burden
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of proof from plaintiff to defendant by invoking the fiction that pleading affirmatively on the matter
he intended to assume the burden of proof. This latter conclusion seems particularly appropriate
since defendant should be encouraged to plead a defense affirmatively if he is in any doubt as to his
ability to put the matter in issue under a denial.” Bobbitt v. Victorian House, Inc., 532 F. Supp. 734, 736737 (N.D. Ill. 1982). Both the First and Second affirmative defenses go beyond denying that Power
Liens’ violated the TCPA or ICFA by sending the fax and assert the reason that Power Liens’ action
did not violate the TCPA or ICFA. Accordingly, this Court finds these defenses are not redundant
of the pure denial of liability and declines to strike the defenses.
This Court finds however that Power Liens’ Ninth affirmative defense is insufficient to meet
the Rule 8(a) standard and the Tenth affirmative defense is redundant of the denials in the Answer
and the First and Second affirmative defenses. Accordingly, this Court grants Mussat’s motion to
strike the Ninth and Tenth affirmative defenses.
IT IS SO ORDERED.
Date: October 6, 2014
Entered: ____________________________
United States District Judge
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