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J&J Sports Productions, Inc v. J&J Sports Productions

December 15, 2010


The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge


Pending before the Court is Plaintiff J&J Sports Productions, Inc.'s motion to strike Defendants' affirmative defenses. Defendants filed an opposition to the motion, and Plaintiff filed a reply. For the reasons discussed below, the Court grants in part and denies in part Plaintiff's motion to strike.

[Docket No. 8]


On April 23, 2010, Plaintiff filed a Complaint alleging that Defendantsunlawfully broadcasted a sporting event at their restaurant in Calexico, California. Plaintiff asserted four claims against Defendants: (1) violation of 47 U.S.C. Section 605, unauthorized publication or use of communications;

(2) violation of 47 U.S.C. Section 553, unauthorized reception of cable service; (3)conversion; and (4) violation of California Business and Professions Code Section 17200, et seq. On July 22, 2010, Defendants filed their Answer denying all claims. The Answer includes thirty affirmative defenses. In response, Plaintiff filed the present motion.


A court may strike an insufficient defense or any redundant, immaterial, impertinent or scandalous matter in a pleading. Fed. R. Civ. P. 12(f). An insufficient defense fails to give the plaintiff fair notice of the nature of the defense. Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979). An "immaterial" matter has no essential or important relationship to the claim for relief or defenses pleaded. Fantasy, Inc. v. Fogerty, 984 F. 2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517, 534-35 (1994). An "impertinent" matter consists of statements that do not pertain and are unnecessary to the issues in question. Id.

Generally, motions to strike are disfavored because pleadings are of limited importance in federal practice and such motions are usually used as a delaying tactic. RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556, 566 (C.D. Cal. 2005). Thus, courts will generally grant a motion to strike only when the moving party has proved that the matter to be stricken could have no possible bearing on the subject matter of the litigation. See Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002); LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Lastly, courts often require a showing of prejudice even when a motion to strike is granted. SEC v. Sands, 902 F. Supp. 1149, 1166 (C.D. Cal. 1995).


Plaintiff asserts a number of reasons for striking all of Defendants' affirmative defenses. First, Plaintiff argues that all of the affirmative defenses are insufficient because they are simply boilerplate recitations. According to Plaintiff, these boilerplate recitations are devoid of facts and circumstances thereby depriving Plaintiff of fair notice of the defense. Plaintiff also contends that some of the affirmative defenses are not affirmative defenses at all because they merely restate Defendants' denial of liability, or assert that Plaintiff cannot prove the elements of the claims. Finally, Plaintiff argues that some of the defenses should be stricken as irrelevant. Defendants respond that each affirmative defense is based in part on their position that the boxing match was aired for free on a television network. However, this position was not asserted in Defendants' Answer. A ruling on a motion to strike affirmative defenses must be based on matters contained in the pleadings. See Kelly v. Kosuga, 358 U.S. 516 (1959) (in considering a motion to strike a defense, "the facts underlying it must be taken to be those set up in the...answer"). Therefore, this Court will address each affirmative defense based only on matters alleged in the pleadings.

A. Insufficient Affirmative Defenses

Plaintiff asserts that Defendants do not provide any facts supporting any of the affirmative defenses, thereby failing to give Plaintiff fair notice of the nature of the defenses, as required. In response, Defendants argue that federal law only requires the defenses to be stated in simple, concise, and direct terms. Fed. R. Civ. P. 8(d)(1).

In some cases, merely pleading the name of an affirmative defense is sufficient. Woodfield v. Bowman, 193 F. 3d 354, 362 (5th Cir. 1999). However, the defense must be sufficiently articulated so that the plaintiff is not a victim of unfair surprise. Board of Trustees of San Diego Elec. Pension Trust v. Bigley Elec., Inc., No. 07CV634, 2007 WL 2070355, at * 2 (S.D. Cal. July 12, 2007) (citing Woodfield, 193 F.3d at 362). Here, many of the affirmative defenses are merely boilerplate recitations. Defendants have not provided any facts related to these defenses in the pleadings. Based on the pleadings, Plaintiff cannot know the intent or nature of the affirmative defenses pleaded. Therefore, the Court strikes the first (failure to state a claim), fourth (no tangible property), seventh (unclean hands), ninth (statutes of limitation), thirteenth (estoppel), fifteenth (waiver), sixteenth (failure to exhaust administrative/judicial remedies), seventeenth (relief barred by law), eighteenth ...

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