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Striking Affirmative Defenses in the Western District of Washington Federal Court

  • Writer: Peter Schneider
    Peter Schneider
  • Sep 12
  • 9 min read

Updated: Sep 12

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When TCPA defendants answer lawsuits, they usually include a lot of nonsense affirmative defenses.


A TCPA may elect to accept them, or move to strike them. The 'con' to moving to strike them is it takes time. The 'pro' to moving to strike them is a defendant has more room to conduct discovery on affirmative defenses, and getting rid of affirmative defenses might make like easier down the roan. Buy how much can be hard to predict up front.


Lets look at some recent Western District of Washington cases and get a feel for the situation.



Mr. Mills moved to strike affirmative defenses in Ms. Monlux's Answer. I don't know all the facts of this case, but either Mr. Mills is extremely petty, or the judge is painting him as such:

Mr. Mills brings this action against Ms. Monlux, the head coach of his daughter's tennis team at Ingraham High School, a public high school in Seattle, Washington. He alleges that Ms. Monlux violated his right to free speech under the constitutions of the United States and Washington by "promulgating [and enforcing] a policy that prohibits parents who are watching Ingraham varsity tennis matches—including Dr. Mills—from engaging in speech that could be construed as 'coaching', yet allows such parents to engage in speech containing 'words of encouragement and clapping.'"

The standard of Review


An affirmative defense is insufficiently pleaded if it fails to provide the plaintiff "fair notice" of the defense asserted. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (per curiam). Fair notice "only requires describing the defense in general terms." Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (internal quotation marks omitted). "Detailed factual allegations are not required—simply '[p]leading enough factual content to identify the factual grounds on which an affirmative defense rests is adequate to provide fair notice' of the affirmative defenses to Plaintiff and the Court." [this is the most common sucessful attack on affirmative defenses. Often defendants don't put any explanation into the affirmative defense, leaving it open for attack] White, 2023 U.S. Dist. LEXIS 89094, 2023 WL 3582395 at *7 (quoting Rosen v. Masterpiece Mktg. Grp., LLC, 222 F. Supp. 3d 793, 802 (C.D. Cal. 2016)). The defendant, however, "must articulate the affirmative defense clearly enough that the plaintiff is not a victim of unfair surprise." Roe v. City of San Diego, 289 F.R.D. 604, 608 (S.D. Cal. 2013) (citation and internal quotations omitted). An affirmative defense is insufficient as a matter of law if it cannot succeed under any circumstances. Wash. v. Franciscan Health Sys., C17-5690BHS, 2018 U.S. Dist. LEXIS 123624, 2018 WL 3546802, at *7 (W.D. Wash. July 24, 2018). Under that rule [FRCP 12(f)], the "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "Rule 12(f) motions to strike are generally disfavored because the motions may be used as delay tactics and because of the strong policy favoring resolution on the merits." White v. Univ. of Wash., No. C22-1798TL, 2023 U.S. Dist. LEXIS 89094, 2023 WL 3582395, (W.D. Wash. May 22, 2023). Nevertheless, "where [a] motion [to strike] may have the effect of making the trial of the action less complicated, or have the effect of otherwise streamlining the ultimate resolution of the action, the motion to strike will be well taken." California v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 1981); see also Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (noting that the purpose of Rule 12(f) is to "avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial") (cleaned up). When considering a motion to strike, the court must view the pleadings in the light most favorable to the pleading party. See, e.g., In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). The court must also construe Rule 12(f) "alongside the general pleading standards of Rule 8." Hennessey v. Radius Glob. Sols. LLC, No. C24-5654DGE, 2024 U.S. Dist. LEXIS 202359, 2024 WL 4696134, at (W.D. Wash. Nov. 6, 2024) (citing Fed. R. Civ. P. 8(b)(1)(A), 8(c)(1)). Whether to grant a motion to strike lies within the discretion of the district court. Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). a motion to strike is not the appropriate vehicle for arguing the substantive merits of an affirmative defense. See Xu v. City of Los Angeles, No. 2:23-cv-01575-FLA (SP), 2023 U.S. Dist. LEXIS 212828, 2023 WL 8143542, at (C.D. Cal. Oct. 18, 2023) ("[A] motion to strike affirmative defenses is not to decide the merits and courts do not strike affirmative defenses simply because they will fail."). Second, the fact that Mr. Mills can identify the allegations that rebut Ms. Monlux's affirmative defenses indicates that her descriptions of those defenses have provided Mr. Mills fair notice of their nature and scope [don't shoot yourself in the foot with the argument] . . . fair notice only requires a general description of the affirmative defense . . . Mr. Mills has made no showing that any of Ms. Monlux's affirmative defenses "cannot succeed under any circumstances" as required to establish legal insufficiency.

What did Mr. Mills win?

the court grants Mr. Mills's motion to strike in two respects. First, lack of standing (affirmative defense 1) is not a true affirmative defense because the burden of proving standing lies with the plaintiff. See Devermont v. City of San Diego, No. 12-CV-01823 BEN (KSC), 2013 U.S. Dist. LEXIS 83495, 2013 WL 2898342, at (S.D. Cal. June 14, 2013) (so holding). And second, the Ninth Circuit has made clear that failure to state a claim (affirmative defense 5) is not a proper affirmative defense. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) ("A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense."). Ms. Monlux may still raise these defenses in an appropriate motion in the future. See, e.g., White, 2023 U.S. Dist. LEXIS 89094, 2023 WL 3582395, at ("Defendants may challenge the legal sufficiency of Plaintiff's claims by a motion for judgment on the pleadings under FRCP 12(c) or other dispositive motion during litigation, if appropriate.").) Accordingly, the court GRANTS the motion in part and STRIKES affirmative defenses 1 and 5 with prejudice.

Affirmative defenses don't negate an element of the plaintiff's case, they forclose recovery even if the plaintiff proves each of his required elements. Eritrean Ass'n of Greater Seattle v. Gebrekidan, 2025 U.S. Dist. LEXIS 109957, 2025 LX 191532, 2025 WL 1654615

Negating the element of a claim is not an affirmative defense. The elements of a claim are what a plaintiff must prove to establish liability—for example, in a simple tort suit: duty, breach, causation, and damages. An affirmative defense, if proven, defeats liability even if all the elements of a claim are established. Accordingly, to the extent that Defendants plan to argue that there was no damage, no knowledge, and no intent, those arguments are not affirmative defenses but rather negate the elements of Plaintiff's claims.
TSI has asserted twelve affirmative defenses in its answer. These defenses are not the type of boilerplate "laundry list" that courts sometimes strike. Rather, they are tailored to the specific claims asserted and provide adequate notice of TSI's grounds for defense. For example, TSI's first affirmative defense asserts the bona fide error defense available under 15 U.S.C. § 1692k(c), tracking the statutory language by alleging that any violations were "not intentional and resulted from bona fide error notwithstanding the maintenance of procedures reasonably adopted and specifically [*3] intended to avoid any such error." This defense is both legally cognizable and adequately pleaded. Silver's primary argument appears to be that TSI's defenses lack sufficient factual detail. Dkt. No. 24 at 2. But this argument misapprehends the applicable pleading standard discussed above. See Baylis, 2025 U.S. Dist. LEXIS 146388, 2025 WL 2161451. Silver also contends that some defenses, such as TSI's assertion that Silver suffered no actual damages, are not proper affirmative defenses but merely denials. Even accepting this characterization, such "negative defenses" do not warrant striking where, as here, they do not prejudice the plaintiff or unnecessarily complicate the litigation. See, e.g., Kohler v. Islands Rests., LP, 280 F.R.D. 560, 567 (S.D. Cal. 2012) (declining to strike negative defense because "[n]egative defenses may also be raised in [the] answer"); Garity v. Donahoe, No. 2:11-CV-01805-MMD, 2013 U.S. Dist. LEXIS 126740, 2013 WL 4774761, at *3 (D. Nev. Sept. 4, 2013) ("The Court fails to see the utility in striking a negative defense at this point, despite it being mislabeled as an affirmative defense, without proof that it is legally insufficient."); John Doe 310 v. Archdiocese of Portland in Or., No. 3:13-CV-822-PK, 2014 U.S. Dist. LEXIS 57839, 2014 WL 1668151 (D. Or. Apr. 25, 2014) ("[T]here is no impropriety in pleading a negative defense, however superfluous it may be to do so."). The existence of statutory damages under both the FDCPA and FCRA does not render the defense legally frivolous.

How does this play out in telemarketing lawsuits?

Telemarketing defendants often put in affirmative defenses subject to striking. Here are some recent examples:

First Affirmative Defense: Failure to State a Claim Plaintiff has failed to state a claim upon which relief can be granted, and, therefore, the claims against American-Amicable should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [The plaintiff has the burden of proving he has a claim upon wihich relief can be granted so this is not an affirmative defense] Fifth Affirmative Defense: Equitable Defenses Plaintiff’s claims are barred, in whole or in part, by the doctrines of estoppel, waiver, and unclean hands. Among other things, Plaintiff invited and welcomed the alleged telephone calls in an effort to manufacture and pursue litigation. [subject to striking because the theories of estopple and waiver are not factually detailed enough to provide fair notice] Sixth Affirmative Defense: Not a Residential Line Plaintiff’s claims fail because he cannot prove that a telephone number belonging to a residential telephone subscriber was called or that the alleged calls were made to a residential line. [technically this is part of the plaintiff's case and subject to striking, but why stop them from taking on the burden of proving it isn't a residential line?] Seventh Affirmative Defense: Applicable Statutes and Regulations American-Amicable pleads the applicability of all relevant parts of the prior versions of 47 U.S.C. § 227, 47 C.F.R. § 64.1200, and R.C.W. 80.36 et seq. placing restrictions on telephone calls that may have been in effect during the time of the events alleged in the Plaintiff’s Complaint. [no one knows what this means so strike it] Eleventh Affirmative Defense: McCarran Ferguson Act American-Amicable pleads the application of reverse preemption of 47 U.S.C. § 227 and related regulations by applicable state insurance laws through the operation of the McCarran Ferguson Act. [no one knows what this means so strike it] Twelfth Affirmative Defense: Hobbs Act American-Amicable would show that the Hobbs Act cannot be constitutionally applied to deprive American-Amicable of the defenses it has under the TCPA or regulations promulgated thereunder. [no one knows what this means so strike it] Thirteenth Affirmative Defense: Failure to Mitigate Damages Plaintiff’s claims are barred, in whole or in part, to the extent Plaintiff failed to mitigate his damages, and as a result, any judgment for Plaintiff must be reduced by any portion of damages which could have been avoided had appropriate steps been taken. [this is not a legally cognizable defense so strike it] Fourteenth Affirmative Defense: Calls Do Not Qualify Plaintiff’s claims are barred, in whole or in part, because the telephone calls allegedly made were not telephone solicitations, unsolicited advertisements, or telemarketing calls within the meaning of the TCPA or R.C.W. 80.36.390. [same as above, technically this is part of the plaintiff's case and subject to striking, but why stop them from taking on the burden of proving it isn't a residential line?] Eighteenth Affirmative Defense: Compliance with Laws Plaintiff’s claims are barred by American-Amicable’s compliance with all applicable state, federal, and local laws and regulations. [no one knows what this means so strike it] Twenty-Second Affirmative Defense: Equitable Allocation and Set Off Any damages sustained by the Plaintiff must be reduced in proportion to the wrongful or negligent conduct of persons or entities other than American-Amicable, including third parties, under the principles of equitable allocation, recoupment, set off, proportionate responsibility, and/or comparative fault. American-Amicable is also entitled to a set off of any recovery Plaintiff recovers from other parties or third parties related to the same alleged violations. [this is not a legally cognizable defense so strike it] Twenty-Fifth Affirmative Defense: Lack of Standing Plaintiff lacks standing to assert any claims based on the alleged telephone calls because Plaintiff has not suffered the requisite harm required to confirm standing under Article III of the U.S. Constitution. [same as above, technically this is part of the plaintiff's case and subject to striking, but why stop them from taking on the burden of disproving standing?]

Got a Case Like This?

If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.


Are telemarketers bothering you in Washington, Oregon, or Montana?

I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.

📞 Call: 206-800-6000 / 971-800-6000


Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.





 
 
 

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