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Lindenbaum v. CVS Health Corp.

United States District Court, N.D. Ohio

November 20, 2017

SHARI LINDENBAUM, Plaintiff,
v.
CVS HEALTH CORPORATION, Defendant.

          OPINION & ORDER [RESOLVING DOC. 9]

          JAMES S. GWIN UNITED STATES 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 insufficiency[11] 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 ...

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