The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Marina Bartashnik brought this action individually
and on behalf of others similarly situated, against defendants
Bridgeview Bancorp, Inc., (Bridgeview Bank) and Meirtran Inc.
(Meirtran) (collectively defendants), alleging violations of the
Electronic Funds Transfer Act (EFTA), 15 U.S.C. §§ 1693-1693r,
and accompanying regulations, after defendants charged her and
others transaction fees at automated teller machines (ATMs)
without posting notice of those fees outside of the
ATMs.*fn1 Each defendant has filed nine affirmative
defenses. Plaintiff now moves under FED.R.CIV.P 12(f) to strike
all of Bridgeview Bank's affirmative defenses and Meirtran's
affirmative defenses 3 through 9. For the following reasons,
plaintiff's motion is granted in part and denied in part.
Affirmative defenses are pleadings that must comply with the
Federal Rules of Civil Procedure by including a short and plain
statement of the basis for the defense. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.
1989). Rule 12(f) allows the court to strike "from any pleading
any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." See also Van Schouwen v.
Connaught Corp., 782 F. Supp. 1240, 1245 (N.D. Ill. 1991)
(stating that a Rule 12(f) motion may be used to strike any
"impertinent or redundant matter in any pleading and is the
primary procedure for objecting to an insufficient defense.").
Generally, courts disfavor motions to strike because of their
potential to cause delay. Yet, striking affirmative defenses may
also increase efficiency if those pleadings provide only
"unnecessary clutter." Heller, 883 F.2d at 1294. Courts in this
district have applied a three-part test when assessing the
sufficiency of an affirmative defense. Under that test the matter
must be properly pleaded as an affirmative defense; it must
comply with Rules 8 and 9; and it must withstand a Rule 12(b)(6)
challenge. See Bobbit v. Victorian House, Inc.,
532 F. Supp. 734, 737 (N.D. Ill. 1982); Yash Raj Films Inc. v. Atl. Video,
2004 U.S. Dist. LEXIS 9739, *7, 2004 WL 1200184 (N.D. Ill. 2004);
Builders Bank v. First Bank & Trust Co., 2004 U.S. Dist. LEXIS
5016, *6, 2004 WL 626827 (N.D. Ill. 2004); Ocean Atl. Woodland
Corp. v. DRH Cambridge Homes, Inc., 2003 U.S. Dist. LEXIS 4964,
*8-9, 2003 WL 1720073 (N.D. Ill. 2003). By alleging that the
affirmative defenses are facially insufficient, plaintiff focuses
on the second Bobbit factor.
Plaintiff argues that all of Bridgeview Bank's affirmative
defenses, and Meirtran's defenses 3 through 9, are nothing more
than conclusory allegations that lack short and plain statements
of fact. Meirtran's defenses 3 through 9 are identical to
Bridgeview Bank's defenses 3 through 9. The affirmative defenses
state as follows:
1. No act or omission of Defendant was a substantial
cause of the occurrence referred to in the Complaint,
or any injury, damage, or loss to Plaintiff, nor was
any act or omission of Defendant a contributing cause
thereof, and any act or omission of Defendant was
superseded by the acts or omissions of other persons, and those acts or omissions were the independent,
superseding, intervening and proximate cause of the
accident and damage alleged in this action, and/or
the damages alleged were the result of an act or acts
2. Plaintiff's claims are barred, in whole or in
part, because Plaintiff's alleged damage, if any, was
proximately caused by the negligence or wrongful
conduct of others, who were outside the control of
Defendant, and not by Defendant.
3. Plaintiff's claims are barred, in whole or in
part, because of a failure to mitigate damages.
4. Plaintiff's claims should be dismissed because she
has failed to join necessary and indispensable
5. Plaintiff's claims are barred, in whole or in
part, by payment, release and/or accord and
6. Plaintiff's claims are barred, in whole or in
part, by set-off and/or recoupment.
7. Plaintiff's claims are barred, in whole or in
part, by waiver, estoppel, and/or laches.
8. This Court is not the proper venue for Plaintiff's
claims and Plaintiff's claims should be dismissed or
transferred to a more appropriate venue.
9. Plaintiff's cause of action against Defendant was
brought in bad faith or for purposes of harassment,
so pursuant to 15 U.S.C. § 1693m(f), Defendants are
entitled to its [sic] reasonable attorneys' fees for
its [sic] of this action.
Plaintiff claims that defendants have failed to provide any
factual basis or similar grounds to support the defenses, and
that they do not provide plaintiff with adequate notice of those
defenses. Bridgeview Bank counters, arguing that the EFTA
specifically authorizes affirmative defenses 1, 2 and 9. As to
affirmative defenses 3 through 8, Bridgeview Bank asserts that
plaintiff cannot state she is unaware of the claims.
Plaintiff argues that the first two affirmative defenses are
conclusory allegations that fail to provide notice of necessary
facts. However, in her reply memoranda, plaintiff accurately
encapsulates the gist of the first two affirmative defenses. She
writes that those defenses "state that Defendant was not the cause of Plaintiff's
injury or any actions it may or may not have taken were
superseded by the actions or negligence of others." Still, she
claims lack of notice. In the first and second affirmative
defenses Bridgeview Bank essentially claims that another party or
event was responsible for the fact that the ATM in question
lacked the required notice of transaction fees. Granted, the
second affirmative defense presents this claim in more certain
terms, but the gist is also apparent in the first defense.
Defendant is entitled to assert these defenses under
15 U.S.C. § 1693h(d), which specifically excuse from liability ATM operators
who properly post notice required by § 1693b(d) (3(B)(i) when the
notice "is subsequently removed, damaged, or altered by any
person other than the [ATM operator]."
Further, the fact that plaintiff responded to Meirtran's first
and second affirmative defenses is inconsistent with her claim
that Bridgeview Bank's first two affirmative defenses fail to
provide notice. Meirtran's and Bridgeview Bank's affirmative
defenses are substantially similar. The only difference between
the two pleadings is that Meirtran includes in its first two
affirmative defenses several paragraphs stating that proper
notice was posted outside of the ATM in question. This difference
is minor, but it justifies striking Bridgeview Bank's first two
affirmative defenses. An affirmative defense must contain all the
necessary elements, and providing proper notice in compliance
with section 1693b(d)(3)(B)(i) is an element of the section
1693h(d) exception. Bridgeview Bank's affirmative defenses,
unlike those pleaded by Meirtran, fail to include this element.
Bridgeview Bank's first two affirmative defenses are stricken
Plaintiff argues that the "failure to mitigate damages" defense
should be struck because it is conclusory and fails to include
necessary facts. She augments this argument in her reply
memoranda and presents new authority supporting her contention
that the failure to mitigate defense is improper because EFTA is a strict liability statute.
We would generally overlook this supplemental argument (see
aaiPharma, Inc. v. Kremers Urban Dev. Co., 361 F. Supp. 2d 770,
774 (N.D. Ill. 2005)), but since Rule 12(f) allows the court to
strike any insufficient defense "upon the court's initiative at
any time," we view it within the scope of our inquiry.
Plaintiff cites no authority to support her claim that EFTA is
a strict liability statute, and in light of the exception in
section 1693h(d) it is difficult to agree with plaintiff's
assessment. See also section 1693m(c).*fn2 Moreover, we
construe the affirmative defense to challenge the extent of
liability, and not the existence of liability, because it states
that plaintiff's claim is barred "in part" by her failure to
mitigate damages. Even if defendants face strict liability, a
failure to mitigate defense could impact the degree of their
liability. See Ring v. Bd. of Educ. Cmty. Sch. Dist. No. 60,
2004 U.S. Dist. LEXIS 14321, *15-16, 2004 WL 1687009 (N.D. Ill.
2004) ("Failure to mitigate damages, as opposed to liability, is
an appropriate affirmative defense under Fed.R.Civ.P. 8(c).");
Yash Raj Films Inc. v. Atl. Video, 2004 U.S. Dist. LEXIS 9739,
*11-12 (N.D. Ill. 2004); Nat'l Accident Ins. Underwriters, Inc.
v. Citibank F.S.B., 243 F. Supp. 2d 769, 771 (N.D. Ill. 2003)
("all `strict liability' means is `liability without fault.' . . .
There is nothing to suggest that it means an absence or
elimination of any possible affirmative defenses."). Section
1693m allows for actual damages, which plaintiff seeks in
addition to statutory damages, and failure to mitigate actual
damages may be a viable defense.
In Ivanhoe Fin., Inc. v. Highland Banc Corp., 2004 U.S. Dist.
LEXIS 18521, 2004 WL 2091997 (N.D. Ill. 2004), the plaintiff
brought a fraud action against defendant arising from fraudulent mortgage loan packages. The defendant filed several
affirmative defenses, including a failure to mitigate damages
defense. The plaintiff moved to strike that defense, arguing that
the defendant neglected to indicate what damages plaintiff failed
to mitigate. Noting that it was unclear whether the failure to
mitigate damages affirmative defense alleged that the plaintiff
failed to verify the loan information (which it had no duty to
do), or if it alleged another act or omission (which could state
a viable defense), the court struck the defense but granted leave
to replead. Unlike the plaintiff in Ivanhoe, plaintiff has not
alleged that the failure to mitigate affirmative defense is
insufficient because it has no duty to mitigate. Rather,
plaintiff merely claims that the defense is conclusory and bereft
of necessary facts. At this stage it is unreasonable to expect
defendants to have specific information about mitigation. Yash
Raj Films, 2004 U.S. Dist. LEXIS 9739, *12; Chronister v.
Superior Air/Ground Ambulance Serv., 2005 U.S. Dist. LEXIS
27252, *10-11, 2005 WL 3019408 (N.D. Ill. 2005); Tome Engenharia
E. Transportes v. Malki, 1996 U.S. Dist. LEXIS 4585, 1996 WL
172286 (N.D. Ill. 1996); Am. Top. English v. Lexicon Mktg.
(USA), Inc., 2004 U.S. Dist. LEXIS 23640, *35, 2004 WL 2271838
(N.D. Ill. 2004) ("the standard for pleading mitigation is
generally liberal"). The third affirmative defense specifically
notifies plaintiff of the issue raised, and the motion to strike
it is denied. See Mobley v. Kelly Kean Nissan, Inc.,
864 F. Supp. 726, 732 (N.D. Ill. 1993).
In the fourth affirmative defense defendants assert that
plaintiff's case must be dismissed because she failed to join
necessary and indispensable parties. Plaintiff argues that the
defense must be stricken because it is conclusory and facially
deficient. Failure to join a party is grounds for dismissal under
Rule 12(b)(7). The fourth affirmative defense is silent as to
exactly who plaintiff has failed to include in the complaint, and
why this party is necessary to her action. The second defense in Form 20 of the Appendix to
the Federal Rules, which is deemed sufficient by Rule 84, sets
forth a defense that resembles the failure to join defense. The
sample defense specifically mentions the party to be joined, why
such joinder is necessary, and how the joinder will not adversely
affect jurisdiction and venue.*fn3 These details are not
present in the fourth affirmative defense, which is accordingly
Plaintiff seeks to dismiss the fifth affirmative defense
because it does not present any factual basis. Payment, release,
and accord and satisfaction, are defenses listed in Rule 8(c).
However, courts have consistently held that stringing together a
list of affirmative defenses fails to satisfy the Rule 8(a) short
and plain statement requirement. See Am. Top. English,
2004 U.S. Dist. LEXIS 23640, *34; Yash Raj Films, 2004 U.S. Dist.
LEXIS 9739, *9; Builders Bank, 2004 U.S. Dist. LEXIS 5016, *17.
Defendants fail to set forth any elements of the defenses.
Plaintiff does not argue that the defenses presented in the fifth
affirmative defense are unavailable under the EFTA, and they are
therefore stricken without prejudice.
In the sixth affirmative defense, defendant asserts that
plaintiff's claims are barred by "set-off and/or recoupment."
These defenses are not listed in Rule 8(c). It has been observed
that set-off is not an affirmative defense "because it does not
destroy . . . plaintiff's right of action." See Am. Top.
English, 2004 U.S. Dist. LEXIS 23640, *36. Both set-off and
recoupment involve counter demands. See BLACK'S LAW DICTIONARY
1372 (6th ed. 1990) (defining set-off as a "counter-claim
demand which defendant holds against plaintiff, arising out of a
transaction extrinsic of plaintiff's cause of action"); id. at
1275 (defining the allegation of recoupment in a pleading as "set[ting] forth a claim against
the plaintiff when an action is brought against one as a
defendant"). Defendants do not claim that any counter demand has
been made and the sixth affirmative defense is stricken. See
Minalga v. Fid. Invs. Institutional Operations Co., 2002 U.S.
Dist. LEXIS 22038, *4, 2002 WL 31527251 (N.D. Ill. 2002).
Waiver, estoppel and laches "are equitable defenses that must
be pled with the specific elements required to establish the
defense." Yash Raj Films, 2004 U.S. Dist. LEXIS 9739, *8-9
(citing cases). Courts have "consistently struck" these defenses
when they are insufficiently pled. Id. Here, defendants fail to
set forth any allegations beyond bare-bones legal conclusions.
The seventh affirmative defense is therefore stricken without
In the eighth affirmative defense, defendants challenge venue
and posit that the claims should be dismissed or transferred to a
more appropriate venue. This affirmative defense is improper
because affirmative defenses should raise matters outside the
scope of a plaintiff's prima facie case. Ring, 2004 U.S. Dist.
LEXIS 14321, *6. Affirmative defenses are more than simple
denials and should not merely negative elements that a plaintiff
must prove. Here, plaintiff must show venue is proper, and the
affirmative defense challenging venue is stricken with prejudice.
The proper challenge to venue ...