U.S. Bands & Orchestra Supplies, Inc. v. John E. Reid and Associates, Inc.
4:17-cv-02240
E.D. Mo.Sep 27, 2017Background
- Plaintiff U.S. Bands & Orchestra Supplies alleges defendant John E. Reid & Associates sent unsolicited fax advertisements in violation of the TCPA, seeking only statutory liquidated damages ($500–$1500 per violation).
- Defendant answered and asserted multiple affirmative defenses, including failure to mitigate damages.
- Plaintiff moved under Fed. R. Civ. P. 12(f) to strike the failure-to-mitigate affirmative defense as legally insufficient and prejudicial.
- Defendant opposed, arguing motions to strike are disfavored and no controlling precedent bars the defense; it also argued the defense would not materially increase discovery.
- The court examined the TCPA text and FCC guidance indicating recipients of unsolicited fax ads are not required to request cessation, and noted statutory damages are liquidated and not subject to mitigation.
- The court concluded the failure-to-mitigate defense cannot succeed as a matter of law given the plaintiff’s sole pursuit of statutory damages and struck that affirmative defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure-to-mitigate is a viable affirmative defense to TCPA claims for statutory fax damages | TCPA imposes no duty to mitigate statutory damages for unsolicited faxes; defense legally insufficient and prejudicial | Striking is extreme; no controlling precedent barring the defense; discovery overlap minimizes prejudice | Struck the failure-to-mitigate defense as legally insufficient where plaintiff seeks only statutory liquidated damages and FCC/TCPA impose no mitigation duty |
Key Cases Cited
- Stanbury Law Firm, P.A. v. IRS, 221 F.3d 1059 (8th Cir.) (motions to strike defenses are disfavored)
- Nationwide Ins. Co. v. Central Mo. Elec. Co-op, Inc., 278 F.2d 742 (8th Cir.) (courts have discretion under Rule 12(f) to strike pleadings)
- Ross v. Garner Printing Co., 285 F.3d 1106 (8th Cir.) (mitigation generally inapplicable to liquidated damages)
- Powell v. W. Asset Mgmt., Inc., 773 F. Supp. 2d 761 (N.D. Ill.) (discussing failure-to-mitigate in TCPA/fax context)