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Joe Hand Promotions, Inc v. Ngoc Ha T. Nguyen

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


November 22, 2011

JOE HAND PROMOTIONS, INC.,
PLAINTIFF,
v.
NGOC HA T. NGUYEN, INDIVIDUALLY AND D/B/A VI SAO CAFE, A/K/A SAO RESTAURANT,
DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE AS MOOT

United States District Court For the Northern District of California

Plaintiff Joe Hand Promotions, Inc., filed its Complaint on February 2, 2011, to which Defendant Ngoc Ha T. Nguyen filed a one-sentence Answer Presenting Defenses Under Rule 12(b) 19 on March 22, 2011. See ECF No. 1 and 5. The Court granted Plaintiff's Motion to Strike Answer 20 with leave to amend on July 19, 2011. See ECF No. 13. 21

Defendant filed a First Amended Answer to Complaint on August 16, 2011, which included 22 sixteen affirmative defenses: (1) failure to state a cause of action; (2) lack of subject matter 23 jurisdiction; (3) lack of standing; (4) statute of limitations, doctrine of laches; (5) failure to 24 mitigate; (6) waiver; (7) entrapment by estoppel; (8) comparative fault; (9) estoppel; (10) 25 intervening acts; (11) alleged actions were not intentional; (12) lack of proximate cause; (13) undue 26 hardship; (14) undue penalty; (15) unclean hands; (16) unjust enrichment. See ECF No. 18. On 27

September 2, 2011, Plaintiff filed a Notice of Motion and Motion to Strike Defendant's 28

Affirmative Defenses with a Memorandum of Points and Authorities seeking to strike each of Plaintiff's sixteen affirmative defenses for failure to satisfy the legal standard necessary to sustain 2 any of these affirmative defenses. See ECF No. 20. However, on October 13, 2011, the Court 3 appointed pro bono counsel for Defendant, Attorney Sayuri K. Sharper, who then, with permission 4 of Plaintiff, filed Defendant's Second Amended Answer to Plaintiff's Complaint. See ECF No. 34 5 and 35. Defendant's Second Amended Answer to Plaintiff's Complaint contains only three 6 affirmative defenses: (1) lack of knowledge; (2) improper double recovery; and (3) cumulative 7 damages. See ECF No. 35. Since none of these affirmative defenses are addressed in Plaintiff's 8 Motion to Strike, Plaintiff's Motion is mooted by Defendant's Second Amended Answer. 9

Therefore, the Court DENIES Plaintiff's motion as moot. Accordingly, the hearing on the 10 motion set for December 1, 2011, is hereby VACATED. 11

United States District Court For the Northern District of California

IT IS SO ORDERED.

20111122

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