The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S FIRST AMENDED ANSWER (Doc. 10)
AND ORDER GRANTING IN PART DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES (Docs. 7)
On November 19, 2010, Plaintiff J & J Sports Productions, Inc. ("Plaintiff") filed a complaint against Defendant Ronald Dean Bear, individually and dba Bear's Den Sports Bar and Deli ("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 "Star Power,": Floyd Mayweather, Jr. v. Victor Ortiz Championship Fight Program (the "Program"), a fighting match that was broadcast on Saturday, September 17, 2011. (Cmplt., ¶ 14.)
Plaintiff's complaint alleges that it was granted the "exclusive nationwide commercial distribution (closed-circuit) rights" to the Program. (Doc. 1, ¶ 14.) Plaintiff subsequently entered into sublicensing agreements with commercial entities in the hospitality industry, including restaurants, authorizing the sublicensee to publicly exhibit the Program. (Cmplt., ¶ 15.) Defendant allegedly "unlawfully intercept[ed], receive[d], publish[ed], divulge[d], display[ed], and/or exhibit[ed] the Program at the time of transmission at his commercial establishment in Avenal, California." (Cmplt, ¶ 17.)
On November 14, 2012, Defendant filed an answer to the complaint asserting eight affirmative defenses. (Doc. 5.) On December 4, 2012, Plaintiff filed a motion to strike all of Defendant's affirmative defenses arguing that they were insufficient. (Doc. 7.) On December 24, 2012, Defendant filed an amended answer asserting four affirmative defenses. (Doc. 9.) The Court set both motions to be heard on February 27, 2013. (Doc. 11.) On February 26, 2013, the matters were deemed suitable for decision without oral argument, the February 27, 2013, hearing was vacated and Plaintiff's motions were taken under submission. For the reasons set forth below, Plaintiff's Motion to Strike Plaintiff's First Amended Answer is GRANTED, and Plaintiff's motion to strike Defendant's affirmative defenses in the original answer is GRANTED in part and DENIED in part.
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 substance. Sec. People, Inc., Classic Woodworking, LLC, No. C-04-3133 MMC, 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 TEH, 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 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1381 (3d ed.) In ruling on a motion to strike, a "court may not resolve disputed and substantial factual or legal issues . . . . " Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal quotation marks omitted). 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.
B. Plaintiff's Motion to Strike Defendant's First Amended Answer
Federal Rule of Civil Procedure 15(a) provides the following, in relevant part:
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Fed. R. Civ. P. 15(a)(1)-(2).
Here, Defendant filed his original answer on November 14, 2012. (Doc. 5.) Pursuant to Rule 15(a)(1)(A), Defendant was entitled to file an amended answer as a matter of right until December 5, 2012. However, Plaintiff did not file a First Amended Answer ("FAA") until December 24, 2012. As Defendant did not obtain leave of court or a stipulation from Plaintiff, Defendant's amended the answer as a matter of right is untimely under Rule 15(a)(1)(A).*fn1
Moreover, because the answer is not a pleading to which a responsive pleading is required (see Fed. R. Civ. P. 7(a)(7) (reply to an answer not permitted unless ordered by the court)), Defendant is not permitted to amend the answer as a matter of right under Rule 15(a)(1)(B). Defendant's FAA, therefore, could only be filed by Plaintiff's written consent or with the court's leave; as discussed above, Defendant obtained neither. Fed. R. Civ. P. 15(a)(2). As such, Plaintiff's motion to strike Defendant's December 24, 2012, FAA is GRANTED.
C. Plaintiff's Motion to Strike Defendant's Affirmative Defenses in the Original Answer
In his original answer, Plaintiff asserted the following eight affirmative defenses: (1) Failure to State Claim; (2) Plaintiff's Own Actions; (3) ...