United States District Court, D. Nevada
REPORT AND RECOMMENDATION MOTION TO STRIKE
AFFIRMATIVE DEFENSES (ECF NO. 55)
Ferenbach, United States Magistrate Judge.
the Court is Plaintiff Federal Trade Commission's
(“FTC”) Motion to Strike Affirmative Defenses.
For the reasons stated below, the Court recommends that the
FTC's motion be granted in part and denied in part.
August 25, 2016, the FTC filed a complaint against Defendants
pursuant to the Federal Trade Commission Act (“FTC
Act”), 15 U.S.C. § 53(b). (ECF No. 1 at 2-4). The
FTC alleged Defendants violated 15 U.S.C. § 45(a) by
misrepresenting online journal publishing practices, failing
to disclose publishing fees, and misrepresenting the
scientific conferences they marketed. (Id. at
12-14). The FTC asked for injunctive and monetary relief
including “restitution, the refund of monies paid, and
the disgorgement of ill-gotten monies.” (Id.
at 15). On October 16, 2017, Defendants filed an answer that
included 20 Affirmative Defenses. (ECF No. 48 at 6-7).
November 6, 2017, the FTC filed a motion to strike 19 of
Defendants' Affirmative Defenses. (ECF No. 55).
Defendants filed a response on November 20, 2017 (ECF No. 59)
and the FTC filed a reply on November 27, 2017 (ECF No. 60).
Rule of Civil Procedure 12(f) states that “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” The purpose of a Rule 12(f) motion to strike
is “to avoid the expenditure of time and money that
must arise from litigating spurious issues by dispensing with
those issues prior to trial.” Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)
(quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524,
1527 (9th Cir. 1993), rev'd on other grounds,
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994));
see also 2 James Wm. Moore, Moore's Federal
Practice, § 12.37, 128-29 (3d ed. 2017)
(“To prevail on this motion to strike, the movant must
clearly show that the challenged matter ‘has no bearing
on the subject matter of the litigation and that its
inclusion will prejudice the defendants.'”).
“'A court must view the pleading under attack in
the light most favorable to the pleader' and should not
weigh the sufficiency of evidence in evaluating a motion to
strike.” D.E. Shaw Laminar Portfolios, LLC v.
Archon Corp., 570 F.Supp.2d 1262, 1271 (D. Nev. 2008)
(quoting Cardinale v. La Petite Acad., Inc., 207
F.Supp.2d 1158, 1162 (D. Nev. 2002)).
to grant a motion to strike lies within the discretion of the
district court. Whittlestone, Inc., 618 F.3d at 973.
“[F]ederal courts generally disfavor motions to
strike.” D.E. Shaw Laminar Portfolios, LLC,
570 F.Supp.2d at 1271 (quoting Germaine Music v.
Universal Songs of Polygram, 275 F.Supp.2d 1288, 1300
(D. Nev. 2003)). “[C]ourts often require a showing of
prejudice by the moving party before granting the requested
relief.” Roadhouse v. Las Vegas Metro. Police
Dep't, 290 F.R.D. 535, 543 (D. Nev. 2013) (internal
FTC's motion to strike addresses 19 of Defendants'
Affirmative Defenses. To simplify its ruling, the Court will
group the affirmative defenses based on the argument the FTC
raises against them.
preliminary matter, Defendants did not respond to the
FTC's motion to strike with regard to Affirmative
Defenses 19 and 20, which pertain to jurisdiction and
asserting additional defenses that may arise later in the
case. (ECF No. 55 at 16-20). Under LCR 47-3, “[t]he
failure of an opposing party to include points and
authorities in response to any motion constitutes a consent
to granting the motion.” Therefore, the Court should
grant FTC's motion to strike as to Affirmative Defenses
19 and 20.
Already Addressed in a Motion to Dismiss
Affirmative Defense 1 is that the FTC “failed to state
a claim against Defendants upon which relief can be
granted.” (ECF No. 48 at 6). The FTC argues that the
Court has already ruled that the complaint adequately
presents the FTC's claims in its order addressing
Defendants' previous motion to dismiss. (ECF No. 55 at
2). Defendants argue the Court's previous ruling is not
binding on this matter. (ECF No. 59 at 12).
have reached inconsistent conclusions when evaluating
affirmative defenses that were previously the subject of a
motion to dismiss. The FTC cites two cases from other
jurisdictions stating that the Court may strike a defense
that was previously ruled against on a motion to dismiss.
(ECF No. 55 at 2-3). However, the Court has found more
persuasive authority stating that the fact that affirmative
defenses “were already the subject of motions to
dismiss,  alone, is not sufficient to warrant striking them
from the Answer.” Garity v. Donahoe, No.
2:11-CV-01805-MMD, 2013 WL 4774761, at *3 (D. Nev. Sept. 4,
2013); see also Ventures Edge Legal PLLC v. GoDaddy.com
LLC, No. CV-15-02291-PHX-GMS, 2017 WL 1075059, at *3 (D.
Ariz. Mar. 22, 2017) (“district courts have long
allowed defendants to plead failure to state a claim as an
affirmative defense even when a motion to dismiss on the same
grounds had been previously denied.”). In addition,
“[t]he defense of failure to state a claim upon which
relief can be granted cannot be waived and can be asserted at
the trial on the merits and hence neither the defendant nor
the trial court is concluded by a prior ruling on a motion to
dismiss from reconsidering the questions previously
raised.” Van Voorhis v. D.C., 240 F.Supp. 822,
824 (D.D.C 1965).
Court's previous ruling on Defendants' motion to
dismiss is not binding on its decision regarding
Defendants' Affirmative Defenses. Because Affirmative
Defense 1 is an otherwise appropriate defense,  the Court should
deny the FTC's motion to strike as to Affirmative Defense
The First Amendment Does Not Protect Deceptive
Affirmative Defense 9 is that “[t]he requested relief,
if granted, would violate Defendants' First Amendment
right to free speech.” (ECF No. 48 at 6). The FTC
argues this defense is insufficient because “the First
Amendment does not protect deceptive speech” and
“[a]ppropriate time, place, and manner restrictions may
be imposed on commercial speech.” (ECF No. 55 at 8-10).
Defendants argue that this defense may be relevant to relief
the FTC seeks in this case and should be allowed to proceed.
(ECF No. 59 at 16-17).
there are inconsistent results from courts ruling on this
issue. The FTC cites decisions from other jurisdictions
accepting the FTC's argument and striking a First
Amendment affirmative defense. (ECF No. 5 at 10). However,
the Court is more persuaded by decisions within the United
States District Court of Nevada: “Whereas the court
agrees that the First Amendment argument may be relevant to
the disposition of the case, and whereas the court sees no
harm in allowing the defense to remain in the answer, the
motion to strike is denied.” F.T.C. v. Ivy Capital,
Inc., No. 2:11-CV-283-JCM-GWF, 2011 WL 2470584, at *2
(D. Nev. June 20, 2011). In addition, “the area of
commercial speech is not exempt from first amendment
protection.” Standard Oil Co. of California v. F.
T. C., 577 F.2d 653, 659 (9th Cir. 1978).
First Amendment is clearly relevant to this case, as it
involves Defendants' commercial speech. Therefore, the
Court should deny the FTC's ...