United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, U.S. DISTRICT JUDGE.
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.
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. See Pl.'s
Stipulation (d/e 21)(stating that Plaintiff's Amended
Complaint only pleads two counts of defamation).
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.
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.
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.
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
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.
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. See Heller Fin., Inc. v. Midwhey Powder
Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). However,
if a motion to strike removes unnecessary clutter from the
case, then the motion serves to expedite, not delay, the
a court will strike an affirmative defense only if the
defense is insufficient on its face. Heller, 883
F.2d at 1294. A court will not ordinarily strike an
affirmative defense if the defense is sufficient as a matter
of law or presents questions of law or fact. Id.
Because affirmative defenses are pleadings, affirmative
defenses are subject to the pleading requirements of the
Federal Rules of Civil Procedure and must set forth a
“short and plain statement” of the defense.
Id., citing Fed.R.Civ.P. 8(a).
the Seventh Circuit has not addressed whether the pleading
standard set forth in Bell Atl. Corp. v. Twombly,
530 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.
662 (2009) applies to affirmative defenses, several courts in
this Circuit have found that it does. See Sarkis'
Cafe, Inc. v. Sarks in the Park, LLC, 55 F.Supp.3d 1034,
1040 (N.D. Ill. 2014) (citing cases). These courts examine
whether the defendant states an “affirmative defense to
relief that is plausible on its face.” SEC v.
Sachdeva, No. 10-C-747, 2011 WL 933967, at *1 (E.D.
Wisc. Mar. 16, 2011). However, whether the
Twombly/Iqbal pleading standard applies likely makes
little difference. Factual allegations that were sufficient
before Twombly and Iqbal will likely still
be sufficient, and “bare bones” affirmative
defenses have always been insufficient. See Shield Techs.
Corp. v. Paradigm Positioning, LLC, No. 11 C 6183, 2012
WL 4120440, at *8 (N.D. Ill. Sept. 19, 2012). In any event,
if an affirmative defense is defective, leave to amend should
be freely granted as justice requires under Federal Rule of
Civil Procedure 15(a). See Heller, 883 F.2d at 1294.