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Viehweg v. Sirius XM Radio, Inc.

United States District Court, C.D. Illinois, Springfield Division

January 5, 2018

WILLIAM HERMAN VIEHWEG, Plaintiff,
v.
SIRIUS XM RADIO, INC., Defendant.

          OPINION

          SUE E. MYERSCOUGH, U.S. 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.

         I. BACKGROUND

         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. See Pl.'s Stipulation (d/e 21)(stating that Plaintiff's Amended Complaint only pleads two counts of defamation).

         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.

         II. LEGAL STANDARD

         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. 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 proceedings. Id.

         Generally, 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).

         Although 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.

         III. ...


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