SUE E. MYERSCOUGH, District Judge.
Plaintiff William Herman Viehweg, proceeding pro se, has filed a Motion to Strike Matter From Defendant's Answer (First Motion) (d/e 18) and an Amended Motion to Strike Matter From Defendant's Answer (Amended Motion) (d/e 19). The Amended Motion is GRANTED IN PART and DENIED IN PART. The First Motion is DENIED AS MOOT. The Court STRIKES Affirmative Defense Nos. 3, 4, 5, 7, and 8 with leave to replead.
In June 2017, Plaintiff filed a Complaint against Defendant Sirius XM Radio, Inc., a company that provides proprietary radio content over the internet using satellites. In November 2017, Plaintiff filed an Amended Complaint pleading two counts of defamation against Defendant.
In the Amended Complaint, Plaintiff alleges that Defendant improperly merged Plaintiff's account with the account of another individual with a similar name, William Harry Viehweg ("Harry"), a distant relative of Plaintiff's who resides in Madison County, Illinois. Defendant purportedly left some of Plaintiff's information on the account but designated Harry's credit card as the active card. When Plaintiff sought to extend his subscription, Harry's credit card was charged.
Harry's wife, Bridget, contacted Defendant to complain about unauthorized charges on Harry's credit card. Defendant purportedly told Bridget that Plaintiff committed identity fraud and then "rewarded her for her acceptance, or silence." Am. Compl. ¶ 16. Plaintiff alleges that Defendant defamed him because (1) Defendant twice told Bridget that Plaintiff committed identity theft; (2) the statements were false; (3) Plaintiff suffered injury; and (4) Defendant made the defamatory statements with knowledge of their falsity and with actual malice.
Plaintiff alleges diversity jurisdiction. The parties are diverse, and the Amended Complaint alleges damages in excess of $75,000. Plaintiff seeks compensatory damages in an amount greater than $85,000, punitive damages in an amount greater than $85,000, and costs.
On December 7, 2017, Defendant filed an Answer and 15 affirmative defenses. The Answer also contains a "WHEREFORE" clause stating that Defendant "hereby respectfully requests that the Court dismiss the Complaint[.]"
On December 13, 2017, Plaintiff filed the First Motion seeking to strike the statement that Defendant "hereby respectfully requests that the Court dismiss the Complaint[.]" On December 18, 2017, Plaintiff filed the Amended Motion seeking to strike the same statement and to also strike Affirmative Defense Nos. 3, 4, 5, 7, 8, and 11.
Pursuant to Rule 12(f) of the Rules of Civil Procedure, the Court may strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored because such motions often only delay the proceedings.
Generally, a court will strike an affirmative defense only if the defense is insufficient on its face.
Although the Seventh Circuit has not addressed whether the pleading standard set forth in
Plaintiff moves to strike the portion of the "WHEREFORE" clause in the Answer wherein Defendant "respectfully requests that the Court dismiss the Complaint" and Affirmative Defense Nos. 3, 4, 5, 7, 8, and 11.
Plaintiff asks the Court to strike the statement in the Answer wherein Defendant "respectfully requests that the Court dismiss the Complaint[.]" Plaintiff asserts that such a statement could be interpreted as a motion by Defendant for judgment on the pleadings.
However, answers to complaints commonly contain a request that judgment be entered dismissing the complaint.
Plaintiff also moves to strike Affirmative Defense Nos. 3, 4, 5, 7, 8 and 11 as insufficient defenses to the defamation claims. Those Affirmative Defenses provide as follows:
As stated above, affirmative defenses must contain a short and plain statement of the defense. However, Affirmative Defense Nos. 3, 4, 5, 7, and 8 fail to contain any factual allegations in support of the proposed defense. Therefore, the Court STRIKES Affirmative Defense Nos. 3, 4, 5, 7, and 8.
Affirmative Defense No. 11 does, however, contain sufficient factual allegations. Defendant alleges that Defendant is entitled to setoff because Plaintiff received services without compensation. In the context of the Amended Complaint, which references the services Plaintiff received from Defendant, this defense is sufficient to give Plaintiff notice of the defense. Assuming setoff is a proper affirmative defense (an issue the parties do not specifically address), Defendant has sufficiently pleaded setoff here.
Plaintiff's Amended Motion to Strike Matter from Defendant's Answer (d/e 19) is GRANTED IN PART and DENIED IN PART. The Court STRIKES Affirmative Defense Nos. 3, 4, 5, 7, and 8 with leave to replead. The original Motion to Strike Matter From Defendant's Answer (d/e 18) is DENIED AS MOOT. The Court grants Defendant leave to file an amended answer containing affirmative defenses on or before January 16, 2018.