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J&J Sports Productions, Inc v. Jose M. Romero

June 18, 2012


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge



Plaintiff J&J Sports Productions, Inc. ("Plaintiff") filed this second motion to strike Defendant's affirmative defenses on May 9, 2012. (Doc. 17). 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 June 15, 2012. (Doc. 21). For the reasons that follow, Plaintiff's Motion to Strike is GRANTED in part and DENIED in part.


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 March 19, 2012, Plaintiff filed a Motion to Strike Defendant's Affirmative Defenses. (Doc. 11). On April 15, 2012, in a written order, this Court granted Plaintiff's Motion to Strike and allowed Defendant to amend its answers "to the extent that the deficiencies [in the Answer] can be adequately remedied." (Doc. 15). Defendant was permitted to reassert affirmative defenses if they could be adequately plead and were pertinent to the Complaint. On April 30, 2012, Defendant filed an Amended Answer, asserting three of the previously alleged affirmative defenses along with a "reservations" clause. (Doc. 16). Defendant's amended answer attempts to cure defects in the unclean hands, laches, and waiver affirmative defenses. On May 9, 2012, Plaintiff filed a second motion to strike all of Defendant's amended affirmative defenses arguing that they violate the Court's initial order and are insufficient. (Doc. 17). On May 19, 2012, Defendant filed an opposition, arguing that its affirmative defenses are pled sufficiently. (Doc. 19).


A. Legal Standard

Under 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.


In its amended answer, Defendant reasserts the equitable defenses of unclean hands, waiver and laches and again reserves its right to assert additional affirmative defenses. (Doc. 16). Plaintiff moves for the second time to strike these affirmative defenses and the reservation clause.

1. Unclean Hands and Waiver

The Court first looks to Defendant's equitable defenses of unclean hands and waiver. Defendant's unclean hands defense states:

Defendants allege that the Complaint is barred by the doctrine of unclean hands. Plaintiff has provided on service route to a dwelling and a restaurant for many years without raising any reservations and did not notify Defendants that he cannot watch the television programming, even for personal use from his restaurant. Plaintiff thus knew or had reason to know of Defendant's ...

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