The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES (Docket No. 20)
On November 19, 2010, Plaintiff Joe Hand Productions, Inc. ("Plaintiff") filed a complaint against Defendant Michael Joe Estrada, individually and dba The Orange Bar ("Defendant"), alleging violations of 47 U.S.C. §§ 553 and 605, as well as causes of action for conversion and for violation of the California Business and Professions Code section 17200, et. seq. The suit is based on Defendant's alleged unlawful interception, receipt, and exhibition of "Ultimate Fighting Championship 106: Tito Ortiz v. Forrest Griffen II," a fighting match that was broadcast on Saturday, November 21, 2009.
On April 4, 2011, Defendant filed an answer to the complaint asserting fourteen affirmative defenses. (Doc. 16.)*fn1 On April 25, 2011, Plaintiff filed a motion to strike all of Defendant's affirmative defenses arguing that they were insufficient. (Doc. 20.) On April 28, 2011, Defendant filed an opposition. (Doc. 21.) For the reasons stated below, Plaintiff's motion to strike is GRANTED. Defendant may file an amended answer within 15 days of the date of this order.
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).
Further, a defense that demonstrates the plaintiff has not met its burden of proof as to an element the plaintiff is required to prove is not an affirmative defense. Barnes v. AT&T Pension Benefit Plan, No.718 F. Supp. 2d 1167, 1173-74 (N.D. Cal. 2010) (quoting Zivokovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). Rather, an affirmative defense is one that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all the elements of the plaintiff's claim are proven. Id. (quoting Roberge v. Hannah Marine Corp., No. 96-1691, 1997 WL 468330, at *3 (6th Cir. 1997) (internal quotation marks omitted)). An affirmative defense is one on which the defendant has the burden of proof. Id. (citing Kanne v. Conn. General Life Ins. Co., 867 F.2d 489, 492 n.4 (9th Cir. 1988)).
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 absence of prejudice to the opposing party. Wyshak, 607 F.2d at 826- 27.
1. Defenses Alleged Not to 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, 2010 WL 3749284, at *5 (E.D. Cal. Sept. 23, 2010). Here, Plaintiff argues that several defenses asserted by Defendant do not actually constitute affirmative defenses.
a. First Affirmative Defense (Failure to State a Claim)
Defendant's first affirmative defense asserts that Plaintiff fails to state a cause of action against Defendant. (Doc. 16, 3:17-19.) Failure to state a claim is an assertion of a defect in Plaintiff's prima facie case, not an affirmative defense. Barnes, 718 F. Supp. 2d at 1174 (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 is not properly asserted as an affirmative defense.")). Accordingly, Defendant's first affirmative defense for failure to state a claim is STRICKEN.
b. Second Affirmative Defense (Individual Liability)
Defendant's Second Affirmative Defense states that Defendant cannot be held "individually liable for actions, if any, of other individuals," and Defendant did not reap any commercial profit from any alleged violation. Defendant cites J & J Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d 469, 473 (E.D.N.Y 2009). Defendant contends that 291 Bar & Lounge, LLC stands for the proposition that there can be no individual liability in a signal piracy case if the complaint contains no allegation that the defendant was present for the violation, authorized or controlled it, or reaped commercial profit from it. (Doc. 21, 6:6-12.) Plaintiff asserts this is not an affirmative defense and only a possible defense at trial. (Doc. 20, 7:22-23.)
This is essentially an argument that Plaintiff's complaint is insufficiently pled for purposes of a claim against Defendant in his individual capacity. This is a defense that can be raised by Defendant, but it is not an affirmative defense in a technical sense. Barnes, 718 F. ...