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J & J Sports Productions, Inc v. Michael Dennis Barwick

May 14, 2013


The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California


Before the Court is Plaintiff J & J Sports Productions, Inc.'s Motion to Strike the Affirmative Defenses set forth in the Answer of Defendant Michael Dennis Barwick's a/k/a Dennis 19 Barwick, individually and doing business as Luxe Lounge ("Barwick" or "Defendant"). ECF No. 20 12 ("Mot."). Pursuant to Civil Local Rule 7-1(b), the Court has determined that this matter is 21 appropriate for resolution without a hearing. Accordingly, the May 16, 2013 hearing on the 22 Motion to Strike is VACATED. However, the Case Management Conference set for May 16, 23 2013, will be held as scheduled. Having considered the submissions of the parties and the relevant 24 law, the Court GRANTS Plaintiff's Motion to Strike. 25


On October 12, 2012, Plaintiff filed a complaint against Defendant for alleged violations of 27 the Communications Act of 1934, 47 U.S.C. § 605, et seq., the Cable & Television Protection and Competition Act of 1992, 47 U.S.C. § 553 et seq., and the California Business and Professions 2 Code § 1700, et seq., as well as a claim for conversion. Compl. ¶ 1. Plaintiff alleges that Plaintiff 3 owns exclusive nationwide commercial distribution rights to Bernard Hopkins v. Chad Dawson, 4

Light Heavyweight Championship Fight Program (the "Program") Id. ¶ 16. Defendant Barwick is 5 a managing member of Luxe Sports Bar & Lounge, LLC, which owns and operates Luxe Lounge, 6 a commercial establishment in Monterey, California. Id. ¶¶ 7, 8. Plaintiff alleges that on October 7 15, 2011, Defendant unlawfully intercepted or displayed the Program at Defendant's commercial 8 establishment. Id. ¶ 19. 9

On December 10, 2012, Defendant filed an Answer, in which Defendant asserted eleven 10 affirmative defenses. See ECF No. 11. ("Answer" or "Ans."). On December 27, 2012, Plaintiff 11 filed a Motion to Strike all eleven of the affirm ative defenses pursuant to Federal Rule of Civil Procedure 12(f). Defendant has not filed an Opposition to Plaintiff's Motion. 15 defenses to each claim asserted against it. Fed. R. Civ. P. 8(b)(1). Federal Rule of Civil Procedure 16 8(c) similarly requires that a party "affirmatively state any avoidance or affirmative defense." 17 18 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A Rule 19 12(f) motion to strike serves "to avoid the expenditures of time and money that must arise from 20 litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. 21 Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); see Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 22 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L. Ed. 2d 455 (1994). 23

A defense may be stricken as insufficient if it fails to give plaintiff "fair notice" of the defense. 24

Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979); see generally Fed. R. Civ. P. 8. A 25 court may also strike from an answer matter that is immaterial, i.e., "that which has no essential or 26 important relationship to the claim for relief or the defenses being plead," or matter that is 27 impertinent, i.e., that which does not pertain, and is not necessary, to the issues in question. 28


A.Legal Standard

Federal Rule of Civil Procedure 8(b)(1) requires a party to "state in short and plain terms its Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an

Fantasy, 984 F.2d at 1527 (quoting 5C Charles A. Wright & Arthur R. Miller, Federal Practice 2 and Procedure § 1382, at 706-07 (1990)). 3

929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009), set a 5 heightened "plausibility" pleading standard for complaints. The vast majority of district courts 6 have held that the standard set forth in Twombly and Iqbal apply to affirmative defenses as well. 7

Cal. March 26, 2012 (collecting cases). "This standard 'serve[s] to weed out the boilerplate listing 9 of affirmative defenses which is commonplace in most defendants' pleadings where many of the 10 defenses alleged are irrelevant to the claims asserted.'" Id. (quoting Barnes v. AT & T Pension

Benefit Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010)). "This standard is also consistent with Iqbal's admonition that fair notice pleading under Rule 8 is not 13 intended to give parties free license to engage in unfounded fishing expeditions on matters for 14 which they bear the burden of proof at trial." Id. (citing Iqbal, 556 U.S. at 678-79). 15 16 defense need not include extensive factual allegations in order to give fair notice, bare statements 17 reciting mere legal conclusions [are] not. sufficient." Id. at *5 (quoting Scott v. Fed. Bond and 18

Collection Serv., Inc., No. 10-02825, 2011 WL 176846, at *4 (N.D. Cal. Jan. 19, 2011)). In order 19 to satisfy Rule 8, "a defendant's pleading of affirmative defenses must put a plaintiff on notice of 20 the underlying factual bases of the defense." Id. at *8 (quoting Dion v. Fulton Friedman & 21

Gullace LLP, No. 11-2727 SC, 2012 WL 160221, at *2 (N.D. Cal. Jan. 17, 2012) (internal citations 22 omitted)). 23

Here, Plaintiff moves to strike each of the eleven affirmative defenses set forth in

Defendant's Answer. These defenses include: (1) failure to state a claim; (2) lack of causation; (3)

good faith/due care; (4) copyright; (5) standing; (6) lack of damages; (7) willfulness; (8) statute of limitations; (9) fair use doctrine; (10) license; and (11) proximate cause of losses. The Court will address each defense below.

The Courts in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L. Ed. 2d See Perez v. Gordon & Wong Law Group, P.C., No. ...

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