Suzanne Degnen, D.M.D., P.C. v. Dentis USA Corporation et al

Filing 24

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiff's motion to strike affirmative defenses [Doc. # 10 ] is granted in part and denied in part.. Signed by District Judge Carol E. Jackson on 5/12/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SUZANNE DEGNAN, DMD, PC,
Plaintiff,
vs.
DENTIS USA CORPORATION, et al.,
Defendants.

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Case No. 4:17-CV-292 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to strike affirmative
defenses of defendant Dentis USA Corporation, pursuant to Fed.R.Civ.P. 12(f).
Defendant Dentis has filed a response in opposition.
Plaintiff filed this action in state court, alleging that it received an unsolicited
fax advertising defendant’s products on October 15, 2015. The fax contained an
opt-out notice that plaintiff claims did not meet regulatory requirements. In this
purported class action under the Telephone Consumer Protection Act (TCPA), 47
U.S.C. § 227, plaintiff seeks statutory damages, injunctive relief, and attorneys’
fees. Defendant removed the action to this Court and filed an answer and thirty
affirmative defenses. Plaintiff moves to strike defense Nos. 1-3, 7-8, 10-11, 13, 15,
and 30.
I.

Legal Standard

Federal Rule of Civil Procedure 12(f) provides that a court may strike from a
pleading “any redundant, immaterial, impertinent, or scandalous matter.” Courts
have liberal discretion to strike pleadings under Rule 12(f). Nationwide Ins. Co. v.
Cent. Mo. Elec. Co-op, Inc., 278 F.3d 742, 748 (8th Cir. 2001). However, striking a

party’s pleading is an extreme measure that is viewed with disfavor and
infrequently granted. Stanbury Law Firm, P.A. v. IRS, 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.” Shirrell v. St. Francis Med. Ctr., No. 1:13-CV42 SNLJ, 2013 WL 3457010, at *1 (E.D. Mo. July 9, 2013) (citation omitted).
Federal Rule 8(c) governs the pleading of affirmative defenses and requires a
party to “affirmatively state any avoidance or affirmative defense.”

Rule 8(e)

specifies that “[e]ach allegation must be simple, concise, and direct. No technical
form is required.” “The rules do not require a party to plead every step of legal
reasoning that may be raised in support of its affirmative defense; they only require
a defendant to state in short and plain terms its defenses to a plaintiff’s claims.”
Wisland v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir. 1997) (citing
Fed.R.Civ.P. 8(c)). “While [an affirmative] defense must be asserted in a responsive
pleading, it need not be articulated with any rigorous degree of specificity, and is
sufficiently raised for purposes of Rule 8 by its bare assertion.” Zotos v. Lindbergh
School Dist., 121 F.3d 356, 361 (8th Cir. 1997) (emphasis in original; citation
omitted).
“[A]n affirmative defense may be pleaded in general terms and will be held
to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives
the plaintiff fair notice of the nature of the defense.” State of Missouri v. Charter
Commc’ns, Inc., No. 4:15-CV-1593 RLW, 2016 WL 1625461, at *5 (E.D. Mo. Apr.
21, 2016) (quoting 5 Charles Alan Wright et al., Federal Practice & Procedure §
1274 (3d ed. Westlaw 2013)). “A motion to strike an affirmative defense should
not be granted unless, as a matter of law, the defense cannot succeed under any

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circumstances or is immaterial in that it has no essential or important relationship
to the claim for relief.” Shirrell, 2013 WL 3457010, at *1 (internal quotation and
citation omitted). The party filing a motion to strike must show that it is prejudiced
by the inclusion of a defense or that a defense’s inclusion confuses the issues. Id.
“[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).
II.

Discussion
A.

Defenses Inapplicable to TCPA Claims

The TCPA “proscribes sending unsolicited advertisements to fax machines”
unless they meet certain exceptions. St. Louis Heart Ctr., Inc. v. Vein Centers for
Excellence, Inc., No. 4:12 CV 174 CDP, 2017 WL 492778, at *1 (E.D. Mo. Feb. 7,
2017) (quoting Mims v. Arrow Fin. Servs. LLC, 132 S. Ct. 740, 745 (2012) (citing
47 U.S.C. § 227(b)(1)(C)). “The term ‘unsolicited advertisement’ means any
material advertising the commercial availability or quality of any property, goods,
or services which is transmitted to any person without that person’s prior express
invitation or permission, in writing or otherwise.” Id. (quoting 47 U.S.C. §
227(a)(5)). As relevant here, the statute prohibits the “use [of] any . . . device to
send, to a telephone facsimile machine, an unsolicited advertisement, unless . . .
the unsolicited advertisement contains a notice meeting the requirements under
paragraph 2(D).” Nack v. Walburg, 715 F.3d 680, 683 (8th Cir. 2013) (quoting §
227(b)(1)(C) & (C)(iii)). The notice must be conspicuous, provide a domestic
telephone number, and identify a cost-free mechanism for the recipient to opt-out

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of receiving future “unsolicited advertisements.” Id. (quoting § 227(b)(2)(D)(i),
(iv)(I)–(II). The TCPA “imposes, on anyone who sends an unsolicited fax
advertisement, statutory damages of $500 per fax, which can be trebled if the court
finds that the violation was willful or knowing.” Sandusky Wellness Ctr., LLC v.
Medtox Sci., Inc., 821 F.3d 992, 997 (8th Cir. 2016) (emphasis in original) (quoting
Creative Montessori Learning Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 914 (7th Cir.
2011).
Defenses No. 2 and No. 13 — Failure to mitigate and failure to notify
In affirmative defense No. 2, defendant asserts that plaintiff and the putative
class members failed to mitigate or avoid their damages. Similarly, in affirmative
defense No. 13, defendant asserts that the claim is barred because plaintiff and the
putative class members “failed to notify” defendant of “the alleged statutory
violations at the time such violations allegedly occurred, which prevented [it] from
taking any action to remedy such violations.” Courts have determined that
recipients of unsolicited faxed advertisements do not have a duty to mitigate.
Springer v. Fair Isaac Corp., No. 14-CV-02238-TLN-AC, 2015 WL 7188234, at *5
(E.D. Cal. Nov. 16, 2015) (striking failure-to-mitigate defense); Exclusively Cats
Vet. Hosp., P.C. v. Pharm. Credit Corp., No. 13-CV-14376, 2014 WL 4715532, at *6
(E.D. Mich. Sept. 22, 2014) (where it was clear plaintiff sought only statutory
damages, mitigation defense “cannot succeed under any circumstances”); Powell v.
W. Asset Mgmt., Inc., 773 F. Supp. 2d 761, 764 (N.D. Ill. 2011) (listing cases
finding no duty to mitigate under § 227 of the TCPA). Similarly, “[r]ecipients of
unsolicited facsimile advertisements are not required to ask that senders stop
transmitting such materials.” Holtzman v. Turza, No. 08 C 2014, 2010 WL 4177150,

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at *5 (N.D. Ill. Oct. 19, 2010), aff’d sub nom. Ira Holtzman, C.P.A. v. Turza, 728
F.3d 682 (7th Cir. 2013); Onsite Computer Consulting Servs., Inc. v. Dartek
Computer Supply Corp., No. 05AC-000108 I CV, 2006 WL 2771640, at *4 (Mo. Cir.
Ct. May 17, 2006) (“Plaintiff was not required to mitigate its damages by calling
Defendant and asking that the faxes be stopped.”). Affirmative defenses No. 2 and
No. 13 will be stricken.
Defenses No. 3 and No. 8 — Statute of Limitations and Laches
In affirmative defense No. 8, defendant asserts that plaintiff’s claim “is
barred, or limited, by the applicable statute of limitations” and, further, that the
application of the statute of limitations “require[s] individualized determinations for
each putative class member . . . thereby precluding class-wide resolution.” TCPA
claims are subject to the four-year “catch-all” statute of limitations set forth in 28
U.S.C. § 1658(a). Giovanniello v. ALM Media, LLC, 726 F.3d 106, 115 (2d Cir.
2013); Exclusively Cats, 2014 WL 4715532, at *4; see also Coniglio v. Bank of
Am., NA, 638 F. App’x 972, 974 n.1 (11th Cir. 2016) (“The TCPA has a four-year
statute of limitations.”); St. Louis Heart Ctr., Inc. v. Vein Centers For Excellence,
Inc., 860 F. Supp. 2d 920, 923 (E.D. Mo. 2012) (statute of limitations for TCPA
violations is four years). The purported class is limited to those who received a junk
fax from defendants “on or after four years prior to the filing of this action” and,
thus, does not violate the four-year statute of limitations. Defendant argues that
“consent is also an affirmative defense and thus the statute of limitations is
determinable through an investigation of the facts.” Striking affirmative defense No.
8 will not preclude defendant from developing its defense based on consent.

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Affirmative defense No. 3 asserts that plaintiff’s claims are barred, in whole
or in part, by the equitable doctrine of laches. The doctrine of laches is “[t]he
equitable doctrine by which a court denies relief to a claimant who has
unreasonably delayed in asserting the claim, when that delay has prejudiced the
party against whom relief is sought.” In re RFC & ResCap Liquidating Trust Litig.,
2015 WL 2451254, at *11 (quoting Black’s Law Dictionary (9th ed. 2009)).
“[L]aches is a defense developed by courts of equity; its principal application was,
and remains, to claims of an equitable cast for which the Legislature has provided
no fixed time limitation.” Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962,
1973 (2014). “[I]n face of a statute of limitations enacted by Congress, laches
cannot be invoked to bar legal relief . . .” Id. at 1974. Plaintiff’s claims are subject
to a four-year statute of limitations and the defense of laches does not apply.
The Court will strike affirmative defenses No. 3 and No. 8.
Defense 15 — Failure to Exhaust Remedies
Defendant asserts that plaintiff’s claims are barred because she “failed to
timely and completely exhaust the requisite administrative remedies, statutory,
and/or contractual remedies available to [her] prior to commencing this action.”
Defendant does not identify any administrative remedies that apply to a TCPA claim
and argues only that it has not yet had the benefit of complete discovery. In the
absence of a legal requirement for a TCPA plaintiff to exhaust remedies before filing
suit, discovery on this issue is irrelevant. Affirmative defense No. 15 will be
stricken.
Defense No. 10 — “Good Faith” Defense

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In affirmative defense No. 10, defendant asserts that it “has at all times
acted in good faith and reasonable grounds for believing that they had not violated
Missouri or federal law.” Plaintiff argues, and defendant does not dispute, that
Missouri law is irrelevant to the TCPA claim asserted here and the reference to
Missouri law will be struck from the affirmative defense No. 10. With respect to
federal law, TCPA defendants are entitled to show that they had prior express
consent to send advertising faxes to specific recipients. Plaintiff does not challenge
defendant’s assertion of a good faith defense under federal law.

Therefore, that

portion of the affirmative defense will not be stricken.
B.

Defenses No. 1, No. 11, and No. 30

Affirmative defense No. 1 asserts that plaintiff “fails to state facts sufficient
to constitute a cause of action upon which relief can be granted.” Rule 12(h)(2)(A)
expressly allows failures to state a claim to be raised in an answer. Kiet Le, d/b/a
Plaza Madrid v. Sentinel Ins. Co., LTD, No. 4:17CV00018 AGF, 2017 WL 1246696,
at *2 (E.D. Mo. Apr. 5, 2017);. Savage v. Citibank N.A., No. 14-CV-03633-BLF,
2015 WL 4880858, at *4 (N.D. Cal. Aug. 14, 2015) (“While the failure to state a
claim or the failure to join an indispensable party may not technically be affirmative
defenses, the Court perceives no good reason to strike these otherwise permissible
(and self-explanatory) defenses on sematic grounds.”) “[T]he court perceives no
prejudicial effect of burdensome discovery or litigating unnecessary issues by
allowing failure to state a claim to remain in defendants’ [answers].” CitiMortgage,
Inc. v. Just Mortgage, Inc., No. 4:09-CV-1909 DDN, 2013 WL 6538680, *8 (E.D.
Mo. Dec. 13, 2013). Plaintiff’s motion to strike affirmative defense No. 1 will be
denied.

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Affirmative defense No. 11 states that the claims of all plaintiffs are barred
“in whole or in part, under the doctrines of waiver, laches, estoppel, ratification,
acquiescence, or unclean hands.” Plaintiff objects that this defense is redundant to
the extent that it includes laches, estoppel, and waiver, which are set forth in other
defenses and, further, combines multiple defenses. Plaintiff has not shown that she
is prejudiced by the form or content of this affirmative defense and the motion to
strike will be denied. Similarly, affirmative defense No. 30 (pleading unjust
enrichment) is not redundant of affirmative defense 7 (pleading that plaintiffs are
not entitled to disgorgement). Plaintiff’s motion to strike affirmative defenses No.
11 and No. 30 will be denied.
***
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff’s motion to strike affirmative
defenses [Doc. # 9] is granted in part and denied in part.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 12th day of May, 2017.

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