UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 23, 2011
J & J SPORTS PRODUCTS, INC., PLAINTIFF,
IAN DOUGLAS HELPER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER TO STRIKE (Doc. 11) REGARDING PLAINTIFF'S MOTION
J & J Sports Products, Inc., ("Plaintiff") proceeds with an action for damages against Ian Douglas Helper and Stephen David Helper ("Defendants"). *fn1
On February 23, 2011, Ian Douglas Helper and Stephen David Helper filed an answer to Plaintiff's complaint ("Answer"). (Doc. 8).
Plaintiff filed a motion to strike various affirmative defenses asserted in the Answer on March 16, 2011. (Doc. 11).
Defendants filed opposition to Plaintiff's motion to strike on April 22, 2011. (Doc. 13). Defendants opposition opposes Plaintiff's motion only with respect to affirmative defenses numbers two and five. Plaintiff filed a reply on March 2, 2011. (Doc. 14).
II. FACTUAL BACKGROUND.
Plaintiff was granted the exclusive nationwide commercial distribution rights to a program entitled: "Firepower: Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program" telecast nationwide on Saturday, November 14, 2009 ("Program"). Defendants unlawfully intercepted and exhibited the program at their commercial establishment.
III. LEGAL STANDARD.
District courts may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). The function of a 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 (9 th Cir. 2010). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being plead. Id . at 974. Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id . "Motions to strike are disfavored and infrequently granted." E.g., NRDC v. Kempthorne , 539 F. Supp. 2d 1155, 1162 (E.D. Cal. 2008).
Defendants do not oppose Plaintiff's motion to strike affirmative defenses 1, 3, 4, 6, 7, 8, 9, and 10 asserted in the Answer. Defendants only oppose Plaintiff's motion to strike the second and fifth affirmative defenses asserted in the Answer.
The second affirmative defense alleges:
Defendants allege that Ian Douglas Helper and Stephen David Helper cannot be held individually liable for actions, if any, of Defendant Tilted Kilt or its agents, employees, or other representatives because Defendants Ian Douglas Helper and Stephen David Helper were not present at the time of any alleged violation, were unaware of and did not authorize any act that may have violated Plaintiff's rights, were not officers of the corporation, and Ian Douglas Helper and Stephen David Helper did not reap any commercial profit from any alleged violation.
The second affirmative defense is unintelligible, as it does not
appear to be an affirmative defense at all. *fn2
See, e.g. , FDIC v. Main
Hurdman , 655 F.Supp. 259, 262 (E.D.Cal.1987) ("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."). Further, the second affirmative defense
references a corporation, but there is no corporate defendant in this
action. As the second affirmative defense does not provide fair notice
of the nature of the defense, it is stricken, without prejudice.
See, e.g. , Wyshak v. City National Bank
, 607 F.2d 824, 827 (9th Cir.1979) ("The key to determining the
sufficiency of pleading an affirmative defense is whether it gives
plaintiff fair notice of the defense.").
The fifth affirmative defense asserted in the Answer is also deficient. The fifth affirmative defense provides:
Defendants allege that the damages of plaintiff, if any, as alleged were not caused by these answering Defendants, but were the result of the acts of third parties over which the answering Defendants, or each of them, had no control.
The fifth affirmative defense does not plead sufficient factual information to give Plaintiff fair notice of the defense as it fails to identify any third parties or their acts or omissions. The fifth affirmative defense is stricken, without prejudice.
For the reasons stated, IT IS ORDERED:
1) The second and fifth affirmative defenses alleged in the Answer are STRICKEN; and
2) Defendants shall file an amended answer within fifteen (15) days of electronic service of this decision.
IT IS SO ORDERED.