Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

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. 11-03323, 2012 WL 1029425, at *8 (N.D. 8

Applying the standards set forth in Twombly and Iqbal, the Court holds that "[w]hile a


A. Each of Defendant's Affirmative Defenses Fails Because They Are Not Supported by Any Factual Allegations

3 supported by facts as required by Rule 8. See Perez, 2012 WL 1029425 at *8 (holding that, in 4 order to satisfy Rule 8, "a defendant's pleading of affirmative defenses must put a plaintiff on 5 notice of the underlying factual bases of the defense"). 6

7 lacks standing to bring suit under the counts alleged in the Complaint" Ans. at 8. The Complaint 8 alleges that Plaintiff has exclusive rights to the Program and that Defendant unlawfully intercepted 9 its transmission and displayed it without authorization. See e.g. Compl. ¶¶ 11, 16, 19. Plaintiff has 10 therefore adequately alleged standing. See J & J Sports Prods., Inc. v. Montanez, No. 10-01693,

As a threshold matter, each of Defendant's affirmative defenses fails because they are not For example, Defendants fifth affirmative defense (lack of standing) alleges that "Plaintiff 2010 WL 5279907, at *3 (E.D. Cal. Dec.13, 2010) (holding that allegations that Plaintiff owned exclusive distribution right to program and that defendants unlawfully displayed the program were 13 sufficient to establish standing); G & G Closed Circuit Events, LLC v. Nguyen, 10-CV-00168-14 LHK, 2010 WL 3749284, at *4 (N.D. Cal. Sept. 23, 2010) (same). Defendant has alleged no 15 contrary facts. Accordingly, Defendant's fifth affirmative defense fails and must be stricken 16 because it is not supported by factual allegations showing that Plaintiff lacks standing. 17

18 conclusory fashion that Plaintiff's claims are "barred by the applicable statute of limitations." Ans. 19 at 9. This defense is also insufficient as a matter of law. The statute of limitations for violations of 20

Sections 553 and 605 is one year. DirecTV v. Webb, 545 F.3d 837, 847-48 (9th Cir. 2008); 21

6, 2009). In California, the statute of limitations for conversion is three years. Cal. Civ. Proc. 23

The statute of limitations for violations under the UCL is four years. Cal. Bus. & Prof. Code § 25 17208. Plaintiff alleges that the Program was broadcast on October 15, 2011, and the Complaint 26 was filed less than one year later on October 12, 2012. These allegations establish that Plaintiff's 27 claims were brought within the applicable statute of limitations periods. Defendant does not allege 28 any contrary facts from which it may be inferred that Plaintiff's claims were not brought within the

Similarly, Defendant's eighth affirmative defense (statute of limitations) asserts in Kingsvision Pay-Per-View, Ltd. v. Barron, No. 08-02413, 2009 WL 347263, at *2 (N.D. Cal. Feb. 22 Code § 338(c); AmerUS Life Ins. Co. v. Bank of America, N.A., 143 Cal. App. 4th 631, 639 (2006).

statute of limitations period. Therefore, Defendant's statute of limitations defense fails and must 2 be stricken. 3

4 license to use every work claimed to be owned or assigned to Plaintiff." Ans. at 9. However, 5 Defendant fails to include any factual allegations supporting Defendant's claim that Defendant had 6 a license to display the Program. Consequently, this defense fails and must be stricken. 7

Likewise, Defendant's tenth affirmative defense (license) alleges that "Defendant had a Defendant's remaining defenses are similarly unsupported by factual allegations. See e.g. Ans. at 8 ("As a sixth. affirmative defense.. Defendant alleges that Plaintiff was not damaged 9 by the purported acts of Defendant.."); id. at 9 ("As for a ninth. affirmative defense.

21 causation), sixth (lack of damages), and tenth (license) affirmative defenses must be stricken 22 because they are not affirmative defenses but rather denials of the elements of Plaintiff's claims. 23

As recognized by the Ninth Circuit in Federal Deposit Ins. Corp. v. Main Hurdman, "[a]ffirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny 26 plaintiff's right to recover, even if the allegations are true." 655 F. Supp. 259, 262 (E.D. Cal. 1987)27 (citing Gomez v. Toledo, 446 U.S. 635, 640-41, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). In 28 Defendant alleges that each and every claim is barred. by the privilege of fair use").

Accordingly, each of Defendant's affirmative defenses must also be stricken.

B.A Number Defendant's Affirmative Defenses Also Fail for Other Reasons

In addition to being unsupported by the required factual allegations, several of Defendant's affirmative defenses suffer from other deficiencies and must be stricken on these grounds as well.

Specifically, Defendant's first, second, sixth, tenth, and eleventh affirmative defenses must be stricken because they are not affirmative defenses. Similarly, Defendant's third, fourth, seventh, and ninth affirmative defenses fail because, even if they are affirmative defenses, they are not appropriate defenses in this action. The Court addresses each category of defenses in turn.

1.Defendant's First, Second, Sixth, Tenth, and Eleventh Defenses Are Not Affirmative Defenses Plaintiff argues that Defendant's first (failure to state a claim), second and eleventh (lack of

See Mot. at 5-6. The Court agrees. 24

contrast, denials of the allegations in the Complaint or allegations that the Plaintiff cannot prove 2 the elements of his claims are not affirmative defenses. See Zivkovic v. S. California Edison Co., 3 302 F.3d 1080, 1088 (9th Cir. 2002) ("A defense which demonstrates that plaintiff has not met its 4 burden of proof is not an affirmative defense."); Solis v. Couturier, No. 08-02732, 2009 WL 5

Defendant's first affirmative defense, which alleges that Plaintiff has failed to state a claim, Ans. at 8, is a denial that Plaintiff has sufficiently alleged each of the elements of Plaintiff's claim. 8

Defendant's second, sixth, and eleventh affirmative defenses, which assert that Defendant did not 10 cause Plaintiff's injuries (second and eleventh) and that Plaintiff has not suffered any injury (sixth),

2022343, at *3 (E.D. Cal. July 8, 2009). 6

Accordingly, Defendant's first affirmative defense is not an affirmative defense. Similarly, 9 see Ans. 8-9, are, in essence, denials of Plaintiff's allegations regarding causation and damage.

Likewise, Defendant's Tenth Affirmative Defense, which alleges that Defendant had a license to 13 show the Program, see Ans. at 9, also is not an affirmative defense, but rather a denial of Plaintiff's 14 allegation that Defendant's showing of the Program was "unauthorized." Compl. ¶ 18. 15

16 affirmative defenses because they are not supported by sufficient facts, the Court strikes these 17 defenses because they are not affirmative defenses.*fn1

Accordingly, in addition to striking Defendant's first, second, sixth, tenth, and eleventh 2.Defendant's Third, Fourth, Seventh, and Ninth Affirmative Defenses are Not Defenses to the Claims in this Case Plaintiff also seeks to strike Defendant's third (good faith), fourth (copyright), seventh (willfulness), and ninth (fair use doctrine) affirmative defenses on the grounds that they are not 21 defenses in this action. See Mot. 6-8. The Court agrees that, even if these defenses may be 22 characterized as affirmative defenses, they are not appropriate defenses in this case. 23

2 scope of discretion, in good faith, with due care, and pursuant to applicable rules, regulations and 3 practices reasonably and in good faith belief to be in accordance with the laws of the United 4

Defendant alleged in the Complaint, if they were committed by Defendant at all, were not done 6 willfully." Id. These defenses assert, in essence, that Defendant did not act without due care or in 7 bad faith, or willfully violate the law. 8

9 the Defendant would bear the burden of pleading. See e.g. Harlow v. Fitzgerald, 457 U.S. 800 10 Defendant's third affirmative defense states that Defendant "acted at all times within the States." Ans. at 8. Defendant's seventh affirmative defense states "that the purported acts of 5 In some circumstances, good faith may form the basis of an affirmative defense for which (1982) ("Qualified or 'good faith' immunity is an affirmative defense that must be pleaded by a defendant official."). However, the Court is unaware of any case law holding that good faith 12 and/or due care, or lack of willfulness are affirmative defenses to the specific claims at issue in this 13 matter. The issue of willfulness is relevant to the extent Defendant may be subject to additional 14 fines if Plaintiff can establish that Defendant acted willfully. See e.g. 47 U.S.C.A. § 553(b) ("Any 15 person who willfully violates subsection (a)(1) of this section shall be fined not more than $1,000 16 or imprisoned for not more than 6 months, or both. Any person who violates subsection (a)(1) of 17 this section willfully and for purposes of commercial advantage or private financial gain shall be 18 fined not more than $50,000 or imprisoned for not more than 2 years, or both..");47 U.S.C.A. § 19 605(e) (same). However, to the extent Defendant's good faith and lack of willfulness defenses 20 simply deny Plaintiff's allegations that Defendant acted willfully, see e.g. Compl. ¶ 20, they are not 21 affirmative defenses. See Zivkovic, 302 F.3d at 1088 ("A defense which demonstrates that plaintiff 22 has not met its burden of proof is not an affirmative defense."); Solis, 2009 WL 2022343 at *3 23

Accordingly, Defendant's third and seventh affirmative defenses must be stricken.*fn2

Plaintiff's fourth (copyright) and ninth (fair use doctrine) affirmative defenses similarly fail.

Defendant's fourth affirmative defense alleges that the "purported copyrights of Plaintiff are 27 (holding that denials of the allegations in the Complaint are not affirmative defenses).

unenforceable because the subject matter was in the public domain." Ans. at 8. However, this is 2 not a copyright action and the Court is unaware of any authority supporting the proposition that 3

Plaintiff's lack of an enforceable copyright in the Program is an affirmative defense to the claims in 4 this action. See Joe Hand Promotions, Inc. v. Nguyen, 11-CV-04745 RMW, 2012 WL 1183738, at 5 *3 (N.D. Cal. Apr. 6, 2012) (striking "copyright defenses," including "(1) the Akien exception, (2) 6 permissible secondary transmission, and (5) untimely copyright registration," because plaintiff's 7 claims were brought under Sections 553 and 605 and not "under copyright law"). 8

Plaintiff's ninth affirmative defense alleges "that each and every claim is barred in whole or 9 in part by the privilege of fair use." Id. at 9. However, this defense is a defense to copyright 10 infringement, which is not alleged in the instant action. See Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 529 (9th Cir. 2008) (outlining "fair use" test); See Nguyen, 2012 WL 1183738 at *3 (striking copyright defenses). Moreover, as set forth supra, Plaintiff has not alleged any facts 13 showing Plaintiff's use of the Program would be covered by the fair use doctrine. See id. (holding 14 that the following factors may be considered in determining whether a defendant's use of a 15 copyrighted work is covered by the fair use doctrine: "(1) the purpose and character of the use, 16 including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) 17 the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation 18 to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or 19 value of the copyrighted work."). 20

Seventh, and Ninth Affirmative Defenses fail because they are not proper defenses in this action. 22

Plaintiff also moves to strike the portion of Defendant's answer which states that Defendant "has not completed his investigation of the allegations of the Plaintiff in the Complaint, and specifically reserves the right to amend his Answer and present additional affirmative defenses as necessary." Ans. at 9. The Court agrees that this language should be stricken from the Complaint. As stated by the Court in Solis v. Zenith Capital, LLC, "An attempt to reserve affirmative defenses for a future date is not a proper affirmative defense in itself." Id., C 08-4854 PJH, 2009

Thus, in addition to not being supported by sufficient facts, Defendant's Third, Fourth,

C.Reservation of Defenses

WL 1324051, at *7 (N.D. Cal. May 8, 2009) (internal citation omitted). "Instead, if at some later 2 date defendants seek to add affirmative defenses, they must comply with Rule 15 of the Federal 3

Rules of Civil Procedure." Id. "Defendant[] cannot avoid the requirements of Rule 15 simply by 4 reserving the right to amend or supplement their affirmative defenses." Id. (internal quotation 5 marks omitted). Accordingly, Defendant's reservation of defenses is stricken. Defendant may 6 seek leave to amend at a later date if it becomes clear that there are additional affirmative defenses 7 which should be asserted. 8

Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "shall be freely given when justice so requires," bearing in mind "the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 200) (en banc) (internal citations, quotation marks, and alterations omitted). When dismissing a complaint for failure to state a claim, "'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.'" Id. at 1127 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

Nonetheless, a court "may exercise its discretion to deny leave to amend due to 'undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., [and] futility of amendment.' " Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892--93 (9th Cir.2010) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (alterations in original). "[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, '[t]he district court's discretion to deny leave to amend is particularly broad.'" Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.2009) (quoting In re Read--Rite Corp., 335 F.3d 843, 845 (9th Cir.2003)). Indeed, repeated failure to cure a complaint's deficiencies by previous amendment is reason enough to deny leave to amend. Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir.2008) (citing Foman, 371 U.S. at 182; Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.1990)).


The Court denies Defendant leave to amend Defendant's first, second, sixth, tenth, and eleventh affirmative defenses because they are not affirmative defenses, and thus leave to amend 3 would be futile. The Court also denies Defendant leave to amend Defendant's third, fourth, 4 seventh, and ninth affirmative defenses because, they are not defenses in this action, and thus leave 5 to amend would be futile. The Court grants Defendant leave to amend Defendant's fifth and eighth 6 affirmative defenses because Defendant may be able to allege facts showing that Plaintiff lacks 7 standing (fifth affirmative defense) or that Plaintiff's claims are barred by the statute of limitations 8 (eighth affirmative defense).9


For the foregoing reasons, the Court GRANTS Plaintiff's motion to strike. The Court denies Defendant leave to amend Defendant's first, second, third, fourth, sixth, seventh, ninth, tenth, and eleventh affirmative defenses. The Court grants Defendant leave to amend Defendant's fifth and eighth affirmative defenses to cure deficiencies identified herein. Any amended Answer must be filed within 30 days of this Order. If Defendant fails to file an amended Answer, Defendant's fifth and eighth affirmative defenses will be deemed stricken with prejudice.*fn3

For assistance with amending Defendant's Answer, the Court refers Defendant, who is pro 17 se, to the Federal Legal Assistance Self-Help ("FLASH") Center in the United States Courthouse 18 located at 280 South 1st Street, 2nd Floor, Room 2070, San Jose, CA 95113. Defendant may 19 contact FLASH at 408-297-1480. FLASH's regular office hours are Mondays and Tuesdays, 9:30 20 a.m. - 4:30 p.m., and Wednesdays by appointment.


Dated: May May 13, 14, 2013 2013

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.