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J & J Sports Productions, Inc v. Defenses Eliaser Montanez and

December 13, 2010

J & J SPORTS PRODUCTIONS, INC.,
PLAINTIFF,
v.
DEFENSES ELIASER MONTANEZ AND
GUADALUPE MONTANEZ, INDIVIDUALLY AND DBA EL (DOCKET NO. 9)
CHARRO RESTAURANT, DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' AFFIRMATIVE

I. BACKGROUND

Plaintiff J & J Sports Productions, Inc. ("Plaintiff") owns exclusive commercial distribution rights to "Number One: The Floyd Mayweather, Jr. v. Juan Manuel Marquez Championship Fight Program" (the "Program"). (Complaint ("Compl.") ¶ 10.) On September 16, 2010, Plaintiff filed this action against defendants Eliaser Montanez and Guadalupe Montanez individually and dba El Charro Restaurant ("Defendants"), alleging that Defendants unlawfully intercepted or displayed the Program at their commercial establishment in Turlock, California. (Compl. ¶ 13.)

The complaint alleges violations of the Communications Act of 1934, 47 U.S.C. § 605; the Cable & Television Protection and Competition Act of 1992, 47 U.S.C. § 553; and California's Unfair Competition Law ("UCL"), Cal. Bus. & Profs. Code § 17200 et seq., as well as a cause of action for conversion. (See Compl. ¶¶ 18, 20, 25.)

On October 21, 2010, Defendants Eliaser Montanez and Guadalupe Montanez each filed identical answers to the complaint asserting fourteen affirmative defenses. (Docs. 7, 8.) On November 11, 2010, Plaintiff filed a Motion to Strike the Affirmative Defenses pled in both answers.*fn1 (Doc. 9.) Plaintiff also requests that the Court sanction Defendants under 28 U.S.C. § 1927 for filing inappropriate and irrelevant affirmative defenses. Defendants have filed no opposition to Plaintiff's motion.

II. DISCUSSION

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(f), the court is permitted to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A defense may be insufficient as a matter of pleading or as a matter of law. Sec. People, Inc., Classic Woodworking, LLC, No. C-04-3133, 2005 WL 645592, at *2 (N.D. Cal. Mar. 4, 2005). An affirmative defense may be considered insufficiently pled where it fails to provide plaintiff with fair notice of the defense asserted. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979). An affirmative defense is insufficient as a matter of law where "there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed." Ganley v. Cnty. of San Mateo, No. C06-3923 THE, 2007 WL 902551, at *1 (N.D. Cal. Mar. 22, 2007). A matter is "immaterial" if it "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). As motions to strike a defense as insufficient are disfavored, they will not be granted if the insufficiency of the defense is not clearly apparent. See Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015 (1986). Because the purpose of pleading an affirmative defense is simply to give fair notice to plaintiff of the defense being asserted, leave to amend should be freely granted in the absence of prejudice to the opposing party. Wyshak, 607 F.2d at 826- 27.

B. Analysis

1. Defenses that Do Not Qualify as Affirmative Defenses

"Affirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny plaintiff's right to recover, even if the allegations of the complaint are true." Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987). In contrast, denials of the allegations in the complaint or allegations that the Plaintiff cannot prove the elements of his claim are not affirmative defenses. G & G Closed Circuit Events, LLC v. Nguyen, No. 10-cv-00168-LHK, at *5 (E.D. Cal. Sept. 23, 2010). Here, several defenses asserted by Defendants do not actually constitute affirmative defenses.

a. First Affirmative Defense (Failure to State a Claim)

Defendants' first affirmative defense asserts that Plaintiff fails to state a claim. Failure to state a claim is an assertion of a defect in Plaintiff's prima facie case, not an affirmative defense. Barnes v. AT&T Pension Benefit Plan, No. C 08-0458 MHP, 2010 WL 2507769, at *6 (N.D. Cal. June 22, 2010) (citing Boldstar Tech., LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1291 (S.D. Fla. 2007) ("Failure to state a claim is a defect in the plaintiff's claim; it is not an additional set of facts that bars recovery notwithstanding the plaintiff's valid prima facie case. Therefore, it ...


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