The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES (Doc. 11)
Plaintiff J&J Sports Productions, Inc. ("Plaintiff") filed the instant motion to strike defendant's affirmative defenses on March 19, 2012. (Doc. 11). The motion was referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g), and vacated the hearing scheduled for April 27, 2012. (Doc. 14). For the reasons that follow, Plaintiff's Motion to Strike is GRANTED.
On November 10, 2011, Plaintiff filed a complaint against Defendant Jose Romero, individually and dba Miramar Restaurant ("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 "Tactical Warfare: Manny Pacquiao v. Antonio Margarito, WBC Light Middleweight Championship Fight Program, telecast nationwide on Saturday, November 13, 2010.
On January 27, 2011, Defendant filed an answer to the complaint asserting five affirmative defenses, with a reservation to supplement his Answer to allege additional affirmative defenses. (Doc. 9). On March 19, 2012, Plaintiff filed a motion to strike all of Defendant's affirmative defenses arguing that they were insufficient (Doc. 10) and on April 14, 2012, Defendant filed an opposition. (Doc. 13).
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). 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.
Plaintiff moves to strike all of defendant's affirmative defenses. Defendant responds that its affirmative defenses should not be struck prior to discovery. (Doc. 13 at 3). The Court addresses each affirmative defense in turn.
1. Defense Insufficiently Pled: First, Second and Fifth Affirmative Defenses (Equitable Defenses)
The Court first looks to Defendant's equitable defenses of, unclean hands, laches and waiver. Defendant's first affirmative defense states that "the Complaint is barred by the doctrine of unclean hands." Def. Answer at 4. The second defense states that "the Complaint is barred by the doctrine of laches." Id. The fifth defense states that "Plaintiff is barred and precluded, in whole or in part by the doctrine of waiver. Id.
"The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." Wyshak, 607 F.2d at 827 (citations omitted). "The fair notice pleading requirement is met if the defendant sufficiently articulated the defense so that the plaintiff was not a victim of unfair surprise." Woodfield v. ...