United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Plaintiff World Kitchen, LLC has moved, pursuant to Federal Rule of Civil Procedure 12(f), to strike the affirmative defenses raised in the Answer filed by Defendants, The American Ceramic Society ("ACS"), Richard C. Bradt, Richard L. Martens, and Peter Wray. For the reasons discussed below, World Kitchen's Motion  is granted in part and denied in part.
In October 2012, World Kitchen, a manufacturer and distributor of kitchenware products, filed a Complaint asserting two causes of action: (1) violations of the Illinois Uniform Deceptive Trade Practices Act (UDTPA) and (2) common law trade disparagement, seeking to enjoin Defendants' publications from allegedly falsely maligning the thermal stress resistance of World Kitchen's Pyrex cookware. In January 2013, Defendants moved to dismiss World Kitchen's Complaint for failure to state a claim under 12(b)(6) and under the Illinois Citizens Participation Act ("ICPA"). On September 19, 2013, the Court denied Defendants' Motion, ruling that the Complaint sufficiently alleged that Defendants made misleading and false statements of fact, not just opinion, about World Kitchen's Pyrex cookware.
In November 2014, World Kitchen, with leave of Court, filed its First Amended Complaint, dismissing the common law claim and proceeding under one cause of action under the UDTPA for injunctive relief. On January 13, 2015, the Court granted World Kitchen's Motion to Strike Defendants' Affirmative Defenses and Portions of Amended Answer, without prejudice for Defendants to file an amended answer. On February 11, 2015, Defendants filed their Amended Answer and Affirmative Defenses. On March 2, 2015, World Kitchen moved again to strike Defendants' First, Second, Third, Fourth, Fifth, Sixth and Seventh Affirmative Defenses.
Under Federal Rule 12(f), a 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 of their potential to cause delay; however, they will be granted where they serve to remove affirmative defenses that only add "unnecessary clutter" to a case. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). A district court has "considerable discretion" whether to strike defenses under Rule 12(f). Delta Consulting Grp. Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009).
Courts in this district have applied a three-part test in examining the sufficiency of affirmative defenses under Rule 12(f): "(1) whether the matter is properly pled as an affirmative defense; (2) whether the affirmative defense complies with Federal Rules of Civil Procedure 8 and 9; and (3) whether the affirmative defense can withstand a Rule 12(b)(6) challenge." Renalds v. S.R.G. Rest. Grp., 119 F.Supp.2d 800, 802 (N.D. Ill. 2000) (citing Heller Fin., Inc., 883 F.2d at 1294); see also Cassetica Software, Inc. v. Computer Sciences Corp., No. 11 C 2187, 2011 WL 4431031, at *5 (N.D. Ill. Sept. 22, 2011) (discussing three-part test but noting "it is often true that affirmative defenses, even if technically inappropriate, cause no real prejudice, and striking them is not worth the time and expense it takes for the parties and the Court to brief and rule on such a motion"). Although the Seventh Circuit has not directly addressed the issue, many lower courts have applied the heightened Twombly-Iqbal standard to affirmative defenses. See, e.g., ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 973 F.Supp.2d 842, 848 (N.D. Ill. 2014) (striking affirmative defense for failing to meet "plausibility' demanded by the Twombly-Iqbal duo" to put plaintiff on notice of its claim); Sarkis' Cafe, Inc. v. Sarks in the Park, LLC, No. 12 C 9686, 2014 WL 3018002, at *4 (N.D. Ill. July 3, 2014); Perez v. Mueller, No. 13-C-1302, 2014 WL 5305897, at *1 (E.D. Wis. Oct. 15, 2014).
First Affirmative Defense
As their First Affirmative Defense, Defendants allege that "paragraphs 1-38 of the Complaint are based on the publication of non-commercial speech" and that "[T]he First Amendment to the Constitution of the United States bars application of the [UDTPA] to non-commercial speech." (Am. Ans. ¶¶ 39-40.) World Kitchen contends that this defense should be stricken on the basis that the Court has previously ruled that World Kitchen has stated a UDTPA claim and that the UDTPA prohibits only false and misleading speech, which is not protected by the First Amendment. Defendants respond that they have properly asserted a First Amendment defense of noncommercial speech and that World Kitchen is treating the Court's previous ruling, which was made under a Rule 12(b)(6) standard, as a ruling on the merits. Defendants further argue that even commercial speech receives First Amendment protection.
Defendants have properly asserted the First Amendment as an affirmative defense to World Kitchen's claims. As Defendants correctly note, World Kitchen's argument for striking this affirmative defense treats the Court's previous ruling as a ruling on the merits. Although World Kitchen has stated a claim under the UDTPA, World Kitchen must also prove that the alleged speech at issue, Defendants' published article, was commercial and not protected by the First Amendment. See, e.g., People ex. rel . Hartigan v. Maclean Hunter Publ'g Corp., 457 N.E.2d 480, 488 (Ill. 1983) (UDTPA prohibits false, misleading or deceptive commercial speech). Furthermore, World Kitchen has not shown that it will be prejudiced by Defendants' defense on this basis. World Kitchen's Motion is denied with respect to the First Affirmative Defense.
Second Affirmative Defense
In their Second Affirmative Defense, Defendants allege that "Plaintiff's allegations in paragraphs 1-38 of the Complaint are based on expressions of scientific opinion on matters of legitimate public concern" and that "[s]uch expressions of opinion are not actionable under the First Amendment or state law." (Am. Ans. ¶¶ 42-44.) For the same reasons discussed above, Defendants have properly asserted a First Amendment defense ...