October 21, 2019

October 21, 2019

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Affirmatively Non-Affirmative Defenses: Court Strikes Multiple Defenses To A TCPA Claim The Defendant Improperly Characterized As “Affirmative” Defenses.

Federal district courts are busy. They have important cases, including significant criminal cases where a defendant’s freedom is on the line and real civil suits that can make or break a company. They take seriously their responsibility to resolve these cases fairly and timely. So when litigants waste their time with pointless motions and boilerplate pleadings, they tend to get frustrated. And that frustration can turn into some of the wittiest and most entertaining orders we come across.

The most recent example comes from a TCPA case out of the District of Arizona, Martinez v. Alltran Finance, No. CV-18-04815, 2019 U.S. Dist. LEXIS 68851 (D. Az. April 23, 2019). Some cases have pointless motions. Others have boilerplate pleadings. This one has both. And the judge’s order is well worth a read.

In response to a TCPA complaint, the defendant denied liability and asserted sixteen “affirmative” defenses. The problem was that, of the sixteen defenses, nine were not actually affirmative defenses at all, but simply denials of the plaintiff’s claims. So on those defenses, the plaintiff’s motion was on solid ground – they are not affirmative defenses at all, and pleading them is a waste of everyone’s time. And the court took the opportunity to give the defendant a lesson on what is and is not an affirmative defense.

The problem, though, was that the plaintiff also moved to strike four defenses that were actual affirmative defenses on the ground that they were meritless. As the court pointed out, a motion to strike is not the proper vehicle to challenge the merits of a defense. Additionally, the plaintiff really did not gain anything by moving to strike the nine non-affirmative defenses. The plaintiff still bears the burden of proving her claim, so striking an “affirmative” defense that isn’t really an affirmative defense has no effect on the case. It can even be a pyrrhic victory, because you’ve just wasted the court’s time with a motion that – regardless of who wins – will have zero impact on the case.

The court ultimately struck the defenses improperly plead as affirmative defenses because, in the court’s words, it had already spent the time deciding that they were not actually affirmative defenses and wanted to discourage defendants from continuing to plead regular defenses in an answer. But the court cautioned plaintiff that if she prevails and is entitled to attorneys’ fees, the court is unlikely consider the motion to strike a “reasonable” expense.

So there you have it. A brief, witty opinion from TCPAWorld that contains some truly valuable insights on pleading and procedure. Well worth a read.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Daniel Delnero specializes in representing companies facing high-stakes consumer class action litigation, with a particular emphasis on consumer financial services matters. He has successfully represented clients in large, complex matters, including the Telephone Consumer Protection Act (TCPA), Fair Debt Collection Practices Act (FDCPA), mergers and acquisitions litigation, First Amendment litigation, libel and defamation, contract disputes and business torts. Daniel also routinely represents companies and individuals facing intrusive governmental investigations,...

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