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Daren Blonski v. Eileen Rogers

October 23, 2012

DAREN BLONSKI,
PLAINTIFF,
v.
EILEEN ROGERS, AND DOES 1-25, INCLUSIVE, DEFENDANT.



MEMORANDUM AND ORDER RE: MOTIONS TO STRIKE AND DISMISS

Currently before the court are plaintiff's motions to strike defendant's First Amended Answer ("FAA") pursuant to Federal Rule of Civil Procedure 12(f) and to dismiss defendant's Counterclaim for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).

I. Motion to Strike

Pursuant to Rule 12(f), the court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The purpose of the rule is to avoid the costs that accompany litigating spurious issues by dispensing with those issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). "Motions to strike are generally viewed with disfavor and are not frequently granted. Courts must view the pleading under attack in the light more favorable to the pleader." Garcia ex rel. Marin v. Clovis Unified Sch. Dist., No. Civ. 1:08-1924, 2009 WL 2982900 AWI, at *23 (E.D. Cal. Sept. 14, 2009) (citation omitted).

A. First Amended Answer

Plaintiff requests that the court strike defendant's FAA in its entirety because it "fails to admit or deny all the essential allegations of the Plaintiff's FAC and fails to fairly respond to the substance of the allegations contained therein." (Pl.'s Mem. in Supp. ("Mem.") at 2:2-3.) Plaintiff argues that defendant's answer fails to meet Rule 8(d)(1)'s requirement that pleadings be "simple, concise, and direct" and is "internally inconsistent" because defendant admits the authenticity of various documents yet denies the allegations they support. (Mem. at 4:10-12.)

The court cannot say that any of the denials in the FAA were without a good faith basis. What defendant appears to have done is to admit to the factual allegations pertaining to the referenced documents to the extent that they say what plaintiff alleges they say, and to deny plaintiff's ultimate legal conclusions to the extent that defendant does not find that they are required by plaintiff's allegations or the referenced documents. Read in its entirety, defendant's FAA makes clear that while defendant admits to business dealings with plaintiff, she denies that such dealings amounted to a legal partnership. Likewise, she admits to signing a partnership agreement, but denies that the agreement is enforceable. She confirms as much in her opposition brief. (Def.'s Mem. in Opp'n ("Opp'n") at 3:1-12.) Defendant has carefully put plaintiff on notice of what she admits and denies. The court will therefore deny plaintiff's motion to strike the entire FAA.

B. Affirmative defenses

In light of plaintiff's criticisms of the affirmative defenses pled in the FAA, defendant at oral argument requested leave to file a second amended answer restating, and hopefully eliminating some, of the affirmative defenses. The court will grant that request.

II. Motion to Dismiss

To survive a motion to dismiss, a plaintiff must plead

"only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding whether a plaintiff has stated a claim, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

A. Claims One Through Five

Claims One through Five of defendant's Counterclaim set forth claims for 1) trademark infringement, 15 U.S.C. § 1114; 2) unfair competition, 15 U.S.C. § 1125(a); 3) unfair competition, Cal. Bus. & Prof. Code § 17200; 4) false description, 15 U.S.C. § 1125(a); and 5) injury to business reputation.

In those claims, defendant plausibly alleges that the 2009 Partnership Agreement is not enforceable because it was not an offer from plaintiff that defendant accepted. Defendant alleges that the 2009 proposal was not intended to be the final, binding agreement between the parties, but rather merely a step in their negotiations. Defendant should be given the chance to prove, if she can, facts to support her allegations suggesting that she did not sign the 2009 proposal with the intent to be bound, that plaintiff did not send her the 2009 proposal with the intent to be bound, or that the parties did not agree to be bound until all parties had signed the agreement. See Harps v. County of Los Angeles, 8 F. App'x 771, 772 (9th Cir. 2001) ("California law requires mutual assent of the parties to form a valid contract."); Roth v. Garcia Marquez, 942 F.2d 617, 626 (9th Cir. 1991) ("'[I]f the evidence shows that the signatures of other parties were required as one of the conditions of the completed agreement, it is incomplete and not binding upon those who sign until the others sign.'" (quoting 1 Witkin, Summary of ...


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