U.S. Bands & Orchestra Supplies, Inc. v. John E. Reid and Associates, Inc.
MEMORANDUM AND ORDER STRIKING FAILURE-TO-MITIGATE AFFIRMATIVE DEFENSE: IT IS HEREBY ORDERED that the motion of plaintiff to strike defendants eighth affirmative defense for failure to mitigate damages (Doc. 15 ) is sustained. This affirmative defense is stricken from defendant's answer. Signed by Magistrate Judge David D. Noce on 9/27/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
U.S. BANDS & ORCHESTRA
JOHN E. REID and ASSOCIATES,
No. 4:17 CV 2240 DDN
MEMORANDUM AND ORDER
STRIKING FAILURE-TO-MITIGATE AFFIRMATIVE DEFENSE
This action is before the court upon the motion of plaintiff U. S. Bands &
Orchestra Supplies, Inc., to strike one of the affirmative defenses pled by defendant John
E. Reid and Associates. (Doc. 15).
Plaintiff seeks statutory damages against defendant, alleging defendant sent
plaintiff unsolicited advertisements to plaintiff’s facsimile machine, in violation of the
Telephone Consumer Protection Act of 1991, as amended, 47 U.S.C. § 227 (TCPA).
(Doc. 1). Defendant’s answer included a number of affirmative defenses, including
failure to mitigate damages, which plaintiff seeks to have stricken by the court. (Doc.
13). “The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Plaintiff argues defendant’s failure to mitigate affirmative defense is insufficient
as a matter of law. More specifically, plaintiff argues that the TCPA imposes no duty on
recipients of unsolicited faxed advertisements to mitigate their damages, that this
affirmative defense merely serves as a diversion, and that its presence in the case is
prejudicial because it will increase plaintiff’s required legal work.
Defendant responds that striking a defense is an extreme and disfavored action,
citing Stanbury Law Firm v. Internal Rev. Serv., 221 F.3d 1059, 1063 (8th Cir. 2000).
Defendant argues further that there is no controlling Eighth Circuit or Supreme Court
precedent prohibiting this defense and that little additional legal work would be required
of plaintiff because other affirmative defenses it has pled encompass the discovery
relevant to the failure to mitigate defense.
Courts have liberal discretion to strike pleadings under Rule 12(f). Nationwide
Ins. Co. v. Cent. Mo. Elec. Co-op, Inc., 278 F.2d 742, 748 (8th Cir. 2001). However, and
as defendant notes, striking a party’s pleading is an extreme measure viewed with
disfavor. Stanbury Law Firm, P.A. v. IRS, 221 F.3d at 1063. “[T]he Court should refrain
from deciding new or close questions of law on a motion to strike due to the risk of
offering an advisory opinion.” Cynergy Ergonomics, Inc. v. Ergonomic Partners, Inc.,
No. 4:08 CV 243 JCH, 2008 WL 2817106, at *2 (E.D. Mo. July 21, 2008). On Rule
12(f), the moving party must show that it is prejudiced by the inclusion of a defense, but
when the challenged defense fails as a matter of law, prejudice – in the form of the
resources and time expended to counter such a defense – is presumed. Suzanne Degnan,
DMD, PC v. Dentis USA Corp., No. 4:17 CV 292 CEJ, 2017 WL 2021085, at *1 (E.D.
Mo. May 12, 2017).
The failure to mitigate affirmative defense should be stricken in this case for
several reasons. The TCPA provides that plaintiffs may recover “actual monetary loss”
or liquidated damages in the amount of “$500 in damages for each . . . violation,
whichever is greater.” 47 U.S.C. § 227(b)(3)(B). In this case, plaintiff has limited itself
to seeking only statutory, liquidated damages. (Doc. 1). The TCPA does not include any
express requirement that fax recipients mitigate statutorily-prescribed damages.
Compare with 47 U.S.C. § 227(c)(5)(C) (Congress explicitly provided defendants an
affirmative defense if they “established and implemented, with due care, reasonable
practices and procedures to effectively prevent telephone solicitations in violation of the
regulations prescribed under this subsection.”).
Furthermore, the agency responsible for administering the TCPA, the Federal
Communications Commission, has confirmed that the TCPA does not impose a duty to
mitigate with respect to the receipt of unsolicited faxes:
Some of the unsolicited facsimile advertisements provide consumers with
telephone numbers to call to express their desire not to participate in any
future polls and/or to be removed from the entities' distribution list(s).
Faxing even one advertisement, however, constitutes a violation of the
TCPA and the Commission's Rules if the sender does not have an
established business relationship with the recipient and/or the recipient's
prior express consent to receive the fax advertisement. Accordingly,
recipients of unsolicited facsimile advertisements are not required to ask
that senders stop transmitting such materials.
FCC, In re 21st Century Fax(es), Ltd., Citation, Case No. EB–00–TC–001 (March 8,
2000), available at https://transition.fcc.gov/eb/Orders/21c.txt.
A plaintiff's actual damages could theoretically be greater than $500 per
unsolicited fax, but mitigation would not apply to the statutory, liquidated damages of
$500 per violation (or up to $1500 for willful or knowing violations). 47 U.S.C. §
227(b)(3)(C); see also Ross v. Garner Printing Co., 285 F.3d 1106, 1113 (8th Cir. 2002)
(holding that mitigation damages ordinarily are inapplicable to liquidated damages)
(applying Iowa law). Although Ross involved a breach of contract claim, the underlying
principle is the same. It is clear from the complaint that plaintiff seeks only the statutory
damages of $500–$1500 per violation. (Doc. 1, Ex. 1 at ¶ 39(c) and (d)).
Accordingly, because plaintiff is only seeking statutory, liquidated damages and
the TCPA imposes strict liability, and because neither the TCPA nor the FCC
contemplates any duty on the part of fax recipients to mitigate, the law is sufficiently
clear that this defense cannot succeed in response to the allegations in this case. See
Connector Castings, Inc. v. Newburg Rd. Lumber Co., No. 4:17 CV 1204 ERW, 2017
WL 3621329, at *2 (E.D. Mo. Aug. 23, 2017); Suzanne Degnan, 2017 WL 2021085, at
*2; see also Powell v. W. Asset Mgmt., Inc., 773 F. Supp. 2d 761, 764 (N.D. Ill. 2011).
Its inclusion in this case is therefore prejudicial to plaintiff, and the interests of judicial
economy are best served by striking this defense at this stage of the litigation.
IT IS HEREBY ORDERED that the motion of plaintiff to strike defendant’s
eighth affirmative defense for failure to mitigate damages (Doc. 15) is sustained. This
affirmative defense is stricken from defendant's answer.
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on September 27, 2017.
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