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J&J Sports Productions, Inc v. Melinda J. Vizcarra and Ricardo Vizcarra


January 9, 2012



United States District Court For the Northern District of California


This matter comes before the Court on the Motion to Strike 18 Defendants' Amended Answer and Affirmative Defenses brought by 19 Plaintiff J & J Sports Productions, Inc. ("Plaintiff") against 20 Defendants Melinda J. Vizcarra and Ricardo Vizcarra, individually 21 and d/b/a Ka Linda Restaurant (collectively, "Defendants"). ECF 22 No. 23 ("MTS"). Pursuant to Civil Local Rule 7-1(b), the Court 23 finds the Motion suitable for determination without oral argument. 24 For the reasons set forth below, the Court GRANTS Plaintiff's 25 Motion in part and DENIES it in part with respect to the Amended 26 Answer, and GRANTS Plaintiff's Motion with respect to both 27 affirmative defenses. 28


On March 10, 2011, Plaintiff filed a Complaint alleging that 3 it owned exclusive nationwide commercial distribution (closed-4 circuit) rights for a boxing match televised in 2010 ("Program") 5 and that Defendants had unlawfully exhibited the Program at 6 Defendants' restaurant. See ECF No. 1 ("Compl.") ¶¶ 10-13. 7

Defendants, proceeding pro se, timely filed an Answer in which they 8 asserted five affirmative defenses. ECF No. 12 ("Answer"). 9

Plaintiff moved to strike all five. ECF No. 13 ("First MTS"). 10

After the First MTS had been fully briefed (ECF Nos. 14 & 16), but before the Court ruled on it, Defendants retained counsel. See 12 ECF No. 18. A few days later, this Court ruled on the First MTS, 13 granting Plaintiff's motion. ECF No. 21 ("Order"). The Court 14 struck from the initial Answer all five affirmative defenses but 15 gave Defendants leave to amend two of them, laches and unclean 16 hands. Order at 7. The Order stated: 17

If Defendants wish to amend these two affirmative defenses, they shall file an Amended Answer within thirty 18 (30) days of this Order. If they have not filed an Amended Answer setting forth particular facts in support 19 of their laches and unclean hands defenses within thirty 20 (30) days, those defenses will be deemed STRICKEN WITH PREJUDICE. 21

Id. 22 23

Defendants, now appearing through counsel, filed an Amended Answer on September 30, 2011, three days after the Court's Order.

ECF No. 22 ("Am. Answer"). The Amended Answer differed from the initial Answer in several respects. In addition to modifying their laches and unclean hands defenses, Defendants, through counsel, entirely rewrote the Answer to include a demand for a jury trial, Am. Ans. at 3, and a series of denials, Am. Ans. at 1. These 2 denials consisted of: two general denials; assertions of 3 insufficient information to respond; specific denials; and a 4 statement denying everything "[e]xcept as expressly admitted 5 herein." Am. Ans. at 1, ¶¶ 1-4. The amended pleading, despite its 6 reference to express admissions, contained none.*fn1

On October 14, 2011, Plaintiff filed the instant Motion to 8 Strike Defendants' entire Amended Answer, including the laches and 9 unclean hands defenses, pursuant to Federal Rule of Civil Procedure 10 12(f).


Federal Rule of Civil Procedure 12(f) provides that a court 14 may, on its own or on a motion, "strike from a pleading an 15 insufficient defense or any redundant, immaterial, impertinent, or 16 scandalous matter." 17

A defense may be insufficient as a matter of pleading or as a 18 matter of law. Sec. People, Inc. v. Classic Woodworking, LLC, No. 19 C-04-3133 MMC, 2005 WL 645592, at *2 (N.D. Cal., Mar. 4, 2005). A 20 defense is insufficient as a matter of pleading if it fails to 21 "give[] plaintiff fair notice of the defense" and the grounds upon 22 which it rests. Simmons v. Navajo Cty., 609 F.3d 1011, 1023 (9th 23 Cir. 2010) (quoting Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 24 (9th Cir. 1979)). If a defense is insufficient as a matter of 25 pleading, a district court should give the pleader leave to amend 26 unless doing so would result in prejudice to the other party. 2

Wyshak, 607 F.2d at 826. 3

A defense is insufficient as a matter of law if it "would not, 4 under the facts alleged, constitute a valid defense to the action . 5 . . ." Sec. People, 2005 WL 645592, at *3. If a defense is 6 legally insufficient, it "can and should be" stricken. Id. 7 8


Plaintiff argues that Defendants' Amended Answer must be 10 struck because (1) it is not properly before this Court and (2) it is defective under the Federal Rules of Civil Procedure 12 (hereinafter, "the Rules" or, individually, "Rule"). Plaintiff 13 also argues that both of Defendants' affirmative defenses continue 14 to be insufficient and therefore must be struck. 15

A.Amended Answer

Plaintiff moves to strike Defendants' Amended Answer on two 17 grounds. First, Plaintiff argues that the Amended Answer is not 18 properly before the Court because Defendants failed to comply with 19 Rule 15's provision that parties may amend their pleadings "only 20 with the opposing party's written consent or the court's leave." 21

MTS at 4. Second, Plaintiff argues, in essence, that because the 22 Amended Answer contains both general and specific denials of the 23 Complaint's allegations it is incurably defective and must be 24 struck in its entirety. MTS at 4-6. 25

Defendants do not supply a coherent response. Unhelpfully, 26 they discuss Rule 8(d)'s authorization of inconsistent legal claims 27 and defenses. See Opp'n at 3. However, as Plaintiff observes, 28 Reply at 3-4, Rule 8(d) is simply inapplicable here. Rule 8(d) addresses inconsistent "claims and defenses" of law, but at issue 2 in Plaintiff's motion is the inconsistency of Defendants' 3 admissions and denials of fact. Defendants, in short, respond to 4 an argument Plaintiff has not made. 5

Nevertheless, Defendants being wrong does not make Plaintiff 6 right. The Court is not persuaded by Plaintiff's argument that the 7 Amended Answer is not properly before this Court. Rule 15(a)(1) 8 permits a party to amend a pleading once as a matter of course 9 within certain time limits; Rule 15(a)(2) permits other amendments 10 "with the opposing party's written consent or the court's leave."

Plaintiff acknowledges that the Court gave Defendants leave to 12 amend their Answer, but argues that Defendants exceeded the scope 13 of the Court's leave by amending portions of the pleading other 14 than those relating to affirmative defenses. MTS at 4. Plaintiff 15 reasons that Defendants must have been amending as a matter of 16 course, but outside the time limits imposed by Rule 15, and that 17 their entire pleading is therefore untimely and must be struck. 18

Id. 19

However, the Court's previous Order may fairly be read to 20 permit amendment of what Plaintiff calls the "Answer proper."*fn2

That Order did not expressly limit Defendants to amending solely 22 those paragraphs containing Defendants' affirmative defenses. See 23 Order at 7 ("If Defendants wish to amend these two affirmative 24 defenses, they shall file an Amended Answer within thirty (30) days 25 of this Order."). Plaintiff cites no authority that would require 26 the Court to impose such a limit, and the Court is not inclined to 2 do so now. 3

Plaintiff's second argument for dismissing the Amended Answer 4 unfolds in two parts: first, that Defendants have impermissibly 5 pled a general denial alongside specific denials, and, second, that 6 this error of form entitles Plaintiff to have Defendants' entire 7 Amended Answer stricken. MTS at 4-6. While the first proposition 8 is true, the second is false. 9

Rule 8(b)(3) clearly expresses the intent that parties who 10 wish to deny the allegations of a complaint will choose, as a matter of form, between a general denial, which includes denial of 12 the alleged grounds for jurisdiction, and specific denials. 13

"General denials are technically permissible in federal actions," 14 but they are "rarely proper because there is almost always 15 something in the complaint that, in good faith, should be admitted: 16 e.g., status of parties, federal jurisdiction, etc." Pentalpha 17 Macau Commercial Offshore, Ltd. v. Reddy, 2005 WL 2562624, at *1 18 (N.D. Cal. 2005). 19

Defendants have improperly pleaded general denials alongside 20 numerous (proper) specific denials. Nevertheless, the Court does 21 not agree with Plaintiff that this is a mark of bad faith, nor, 22 more pertinently, that the remedy for Defendants' error is to 23 strike their entire pleading. The Federal Rules embody an approach 24 to pleading which deemphasizes formal niceties in favor of actual 25 notice. See, e.g., 5 Charles Alan Wright & Arthur R. Miller, 26 Federal Practice and Procedure § 1266 (3d ed. 1998) ("[A]s has been 27 pointed out numerous times in this discussion of pleading under the 28 federal rules, nomenclature and formal matters should not be determinative and the intention of the pleader should be given 2 effect so that a resolution of the merits can be achieved."). 3

Defendants have made their intentions plain enough to put Plaintiff 4 on notice of the basis of their defenses, and it would be "wasteful 5 formality, not supported by the Federal Rules' notice pleading 6 standards," to require Defendants to amend their Answer yet again. 7

Khalek v. San Diego Trolley, Inc., 2007 WL 1381611, at *3 (S.D. 8 Cal. 2007). The purpose of a 12(f) motion is to avoid rather than 9 increase the expense of unnecessarily litigating picayune issues. 10 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). Hence, this Court 12 declines to strike the entire Amended Answer. 13

Read in its entirety, Defendants' Amended Answer makes plain 14 that Defendants admit to having ordered the Program from a third 15 party but deny having shown it in their restaurant. Defendants say 16 as much in their opposition brief. See Opp'n at 3. Plaintiff has 17 been put on sufficient notice of what Defendants admit (that they 18 own a business in Union City, subscribe to DIRECTV, and ordered the 19 Program from DIRECTV) and what they deny (everything else). 20 Moreover, Plaintiff has the opportunity to test Defendants' factual 21 contentions through discovery. 22

It is readily apparent from the Amended Answer, taken as a 23 whole, that Defendants intended only to generally deny wrongdoing, 24 not to issue a general denial of fact. Therefore, the Court GRANTS 25 Plaintiff's Motion to Strike the Amended Answer only with respect 26 to the purported general denials in Defendants' Amended Answer and 27 otherwise DENIES the motion. Defendants' specific denials remain. 28

The Court also reminds Defendants' counsel of his Rule 11 2 obligations with respect to factual contentions and admonishes him 3 to observe the formal requirements of Rule 8 in any future 4 pleadings before this Court. 5

B.Affirmative Defenses

In the Amended Answer, Defendants reprise their attempts to 7 plead the affirmative defenses of laches and unclean hands. 8

Previously, Defendants, proceeding pro se, pled these defenses 9 simply by invoking their names. Answer ¶¶ 19, 20. This Court 10 struck the defenses as insufficiently pled but gave Defendants leave to amend them. Order at 6-7. In doing so, the Court 12 observed the lenient pleading standard applied to pro se litigants. 13

Id. at 4. Defendants are now represented by counsel. The Court 14 therefore reviews the Amended Answer's pleading of affirmative 15 defenses under generally applicable standards. 16

Unfortunately, Defendants' amended Answer scarcely improves 17 upon the original. Defendants plead laches by stating that they 18 subscribed to DIRECTV over five years before Plaintiff brought 19 suit. Am. Answer ¶ 5. Plaintiff points out that the instant 20 lawsuit does not concern when or whether Defendants subscribed to 21 DIRECTV, but rather whether they unlawfully intercepted and 22 exhibited the Program. MTS at 7; Reply at 5. The Court agrees. 23

Previously, Defendants provided no facts to support their laches 24 defense; now, they have provided facts, but the facts do not amount 25 to laches, even when construed in the light most favorable to 26

Defendants. The timing of Defendants' purchase of DIRECTV service 27 is simply irrelevant and "could have no possible bearing on the 28 subject of the litigation." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). Defendants' laches 2 defense therefore fails as a matter of law. Accordingly, the Court 3 strikes Defendants' first affirmative defense with prejudice. 4

Defendants are barred from further pleading the affirmative defense 5 of laches. 6

Defendants' affirmative defense of unclean hands fares no 7 better. Defendants allege that they ordered the Program from a 8 DIRECTV employee who "misled" them into thinking they could order 9 the Program for family viewing. Am. Answer ¶ 6. This explains how 10 Defendants came to order the Program but not how Plaintiff acted with unclean hands. The issue is not whether Defendants ordered 12 the program but whether they unlawfully exhibited it in their 13 restaurant. Defendants baldly assert that DIRECTV is a sublicensee 14 of Plaintiff and assume that this would render Plaintiff 15 responsible for DIRECTV's acts, but they do not allege how this is 16 so. Defendants' allegations concerning DIRECTV, as above, are 17 irrelevant. As this Court explained in its previous Order, if 18 Defendants believe they have a claim against DIRECTV, then they 19 must bring an action against DIRECTV. Order at 6. 20

Defendants have pled the defense of unclean hands with 21 sufficient supporting facts to put Plaintiff on notice of the basis 22 for the defense, but the basis is inadequate as a matter of law. 23

Accordingly, the Court strikes Defendants' unclean hands defense 24 with prejudice. Defendants are barred from further pleading the 25 affirmative defense of unclean hands. 26


For the foregoing reasons, the Court GRANTS in part and DENIES 3 in part the Motion to Strike filed by Plaintiff J & J Sports 4 Productions, Inc., against Defendants Melinda J. Vizcarra and 5 Ricardo Vizcarra. The Court STRIKES Defendants' putative general 6 denials WITH PREJUDICE. Defendants' specific denials remain. The 7 Court also STRIKES Defendants' affirmative defenses of laches and 8 unclean hands WITH PREJUDICE. 9

The parties shall appear for a Case Management Conference on 10 February 24, 2012, at 10:00 a.m. in Courtroom 1.



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