ST. LOUIS — U.S. District Judge Shirley Padmore Mensah issued a mixed ruling in a junk fax lawsuit being litigated in the Eastern District of Missouri.
In a Jan. 5 ruling, Mensah denied the plaintiffs' request to strike the defendants' "failure to state a claim upon which relief can be granted" and "unclean hands, waiver, laches, acquiescence and estoppel" affirmative defense answers.
However, she granted the plaintiffs' request to strike defendants' "failure to mitigate or prevent damages" and "statute of limitations" affirmative defense answers.
According to background information in the ruling, Swinter Group Inc. filed a class action against Nationwide Truckers' Insurance Agency and others last year claiming violations of the Telephone Consumer Protection Act (TCPA). They seek statutory damages of $500 per TCPA violation and treble (triple) damages of up to $1,500 per alleged violation.
The plaintiffs claim the defendants have sent other ads by fax to at least 40 other people. They further claim that the ads lack a notice that is required by the TCPA that tells recipients how to avoid future unsolicited ads.
The defendants answered the suit in September and asserted several affirmative defenses, which the plaintiffs responded to by seeking to strike four of the defendants' affirmative defenses.
Regarding the statute-of-limitations argument the defendants asserted, Mensah found it "insufficient as a matter of law."
"Defendants have offered nothing to dispute that the four-year statute of limitations applies to the claims in this case and have offered no explanation for how the statute of limitations might bar the claims in this case," Mensah wrote. "The Court finds that here, as in that case, this defense is insufficient as a matter of law, and the motion to strike this affirmative defense will be granted."
On the plaintiffs' request to strike the defendants' failure to state a claim argument because that "is not actually an affirmative defense but is rather a defense that asserts a defect in the plaintiff’s prima facie case," Mensah sided with defendants.
"Regardless of whether this is an affirmative defense, however, Plaintiff has not shown that its inclusion in the pleadings prejudices Plaintiff in any way. The Court finds no reason to believe that such prejudice would exist. Thus, the motion to strike this affirmative defense will be denied."