Filed: Nov. 20, 2017
Latest Update: Nov. 20, 2017
Summary: OPINION & ORDER [Resolving Doc. 9 ] JAMES S. GWIN , District Judge . Plaintiff Shari Lindenbaum sues Defendant CVS Health Corporation ("CVS") for violations of the Telephone Consumer Protection Act (TCPA). She sues on behalf of herself and a class to be certified. 1 Plaintiff alleges that CVS made at least six prerecorded calls to Plaintiff's cellphone without her consent. 2 In its answer to the complaint, Defendant CVS raises twenty-two affirmative defenses. 3 Plaintiff now moves to
Summary: OPINION & ORDER [Resolving Doc. 9 ] JAMES S. GWIN , District Judge . Plaintiff Shari Lindenbaum sues Defendant CVS Health Corporation ("CVS") for violations of the Telephone Consumer Protection Act (TCPA). She sues on behalf of herself and a class to be certified. 1 Plaintiff alleges that CVS made at least six prerecorded calls to Plaintiff's cellphone without her consent. 2 In its answer to the complaint, Defendant CVS raises twenty-two affirmative defenses. 3 Plaintiff now moves to s..
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OPINION & ORDER
[Resolving Doc. 9]
JAMES S. GWIN, District Judge.
Plaintiff Shari Lindenbaum sues Defendant CVS Health Corporation ("CVS") for violations of the Telephone Consumer Protection Act (TCPA). She sues on behalf of herself and a class to be certified.1 Plaintiff alleges that CVS made at least six prerecorded calls to Plaintiff's cellphone without her consent.2 In its answer to the complaint, Defendant CVS raises twenty-two affirmative defenses.3
Plaintiff now moves to strike fifteen of these twenty-two affirmative defenses under Federal Rule of Civil Procedure 12(f).4 Defendant opposes.5
For the following reasons, the Court DENIES Plaintiff's motion to strike the fifteen affirmative defenses.
I. LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) allows a court to strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
Because of the "practical difficulty of deciding cases without a factual record," the Sixth Circuit has held that striking a pleading "should be sparingly used by the courts."6
Iqbal and Twombly pleading requirements do not apply to affirmative defenses.7 Rather, affirmative defenses need only provide "fair notice of the nature of the defense."8 As a result, general or boilerplate defenses are acceptable, even if they lack factual specificity.9 Thus, "[a] motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy."10 Courts will rarely strike a defense for legal insufficiency11 and will not strike defenses raising factual questions.12
II. DISCUSSION
Plaintiff objects to the following fifteen affirmative defenses made by Defendant:
(2) (a) lack of standing; (b) lack of subject matter jurisdiction;
(5) improper venue;
(6) Plaintiff's and class members' prior express written consent to calls;
(7) no use of an automatic telephone dialing system by Defendant;
(9) TCPA's emergency purposes exception;
(10) TCPA's exigent healthcare treatment exception;
(11) (a) statute of limitations; (b) laches; (c) waiver; (d) estoppel; (e) unclean hands; (f) ratification;
(12) Plaintiff's own actions or inactions causing damages;
(13) unconstitutionally vague and overbroad interpretation of the TCPA;
(15) excessive statutory penalties;
(18) improper class action;
(19) unmeasurable class-wide damages;
(20) TCPA's safe harbor for reassigned telephone numbers;
(21) failure to mitigate damages; and
(22) other defenses Defendant reserves the right to assert.13
Plaintiff argues that these affirmative defenses are legally insufficient based on the complaint's factual allegations, or are legally insufficient on their face.14 Defendant, however, argues that their affirmative defenses involve legal issues with a possible relation to the controversy or need factual determinations.15
The Court finds no basis to strike Defendant's affirmative defenses.
First, affirmative defenses (2-a); (5)-(7); (10)-(12); and (18)-(20)16 all involve factual determinations that the Court can more appropriately consider on summary judgment. Defendant was not required to specifically plead any of the facts supporting these defenses.
For affirmative defenses (9), (13), (15),17 and (21), Plaintiff fails to show that they have no possible relation to the controversy. Plaintiff fails to cite binding Circuit or Supreme Court precedent that would clearly preclude Defendant from raising these defenses.
For affirmative defense (2-b) lack of subject matter jurisdiction, Plaintiff will not suffer any prejudice if the Court does not strike it. Even if Defendant had not included the defense, the Court can sua sponte review its subject matter jurisdiction at any point.18
Lastly, the Court reads affirmative defense (22) as a reservation of rights.19 Plaintiff therefore lacks any ground to strike this defense.
III. CONCLUSION
For the above reasons, the Court DENIES Plaintiff's motion to strike.
IT IS SO ORDERED.
