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Erickson Productions, Inc. v. Kast

United States District Court, N.D. California, San Jose Division

April 23, 2014

KRAIG R. KAST, Defendant.


HOWARD R. LLOYD, Magistrate Judge.

Plaintiffs Jim Erickson and Erickson Productions, Inc. sue for alleged copyright infringement. Pending before the court is their motion to strike the affirmative defenses asserted by defendant Kraig R. Kast. Kast opposes the motion. Plaintiffs did not file a reply. Upon consideration of the moving and responding papers, as well as the arguments of counsel, the court grants the motion in part and denies it in part.[1]


According to the complaint, Jim Erickson is a professional photographer who makes his living by licensing his photographs through his company, Erickson Productions, Inc. One of his clients is Wells Fargo Bank (Wells Fargo). Erickson says that Kast copied several of his photos from Wells Fargo's website and used them without permission on the website for Atherton Trust, a company allegedly owned and operated by Kast. Plaintiffs assert claims against Kast for copyright infringement, as well as for contributory and vicarious copyright infringement.

That Erickson's photos were contained on a version of Atherton Trust's website is not disputed. However, Kast contends that the Atherton Trust website was designed by a third-party, Only Websites, Inc. (Only Websites), and that he had no knowledge of or control over any alleged infringement. (Dkt. 22, Affirmative Defenses ¶¶ 3, 7). According to defendant, during the development phase, Only Websites asked for examples of websites with a "similar look, feel, layout, and basic structure" Kast desired for the Atherton Trust site. (Id. ¶ 8). In response, Kast either pointed out or hyperlinked to Wells Fargo's website (among others); and, Only Websites reportedly used the Wells Fargo site as a "partial template" for the Atherton Trust site. (Id. ¶¶ 8-9). Kast says that the version of the Atherton Trust website containing plaintiff's photos was incomplete and never meant to be seen by the public. (Id. ¶¶ 4-6, 9). Defendant further contends that he told Only Websites to procure licensed photos for Atherton Trust's site and that the final website contained only properly licensed images. (Id. ¶ 10).

Plaintiffs originally sued Kast, Atherton Trust, and Only Websites in the District Court for the Southern District of New York. Atherton Trust and Only Websites reportedly never appeared or responded to the complaint. The New York court entered their default and then eventually entered default judgment against them. Plaintiffs say that after their motion for damages against Atherton Trust and Only Websites was submitted, Atherton Trust appeared through counsel, who filed a motion to set aside the default and to dismiss Atherton Trust for lack of personal jurisdiction. This court is told that plaintiffs' motion for damages and Atherton Trust's dispositive motion remain pending.

Meanwhile, Kast was dismissed from the New York action for lack of personal jurisdiction. Plaintiffs then sued him in the District Court for the Central District of California for alleged infringement of the copyright in the subject photos. That lawsuit subsequently was removed here on the parties' stipulation. Kast, appearing through counsel, answered the complaint and asserted five defenses for (1) "Fair Use"; (2) "Setoff and Single Satisfaction Rule"; (3) "Lack of Volitional Act" (4) "Innocent Infringement"; and (5) "Unconstitutionally Excessive Damages."

Plaintiffs now move to strike those defenses. Although plaintiffs allude to Fed.R.Civ.P. 11, the actual basis for their motion is that Kast's defenses are legally insufficient and fail to raise a plausible right to relief. At the motion hearing, Kast voluntarily withdrew his fifth affirmative defense. Accordingly, plaintiffs' motion as to that defense is denied as moot. As for the four remaining defenses, the court grants in part and denies in part plaintiffs' motion to strike.


On its own, or on motion by a party, "[t]he 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 such a motion "is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973 (9th Cir. 2010).

"A defense is insufficiently pled if it fails to give the plaintiff fair notice of the nature of the defense, " i.e., fails to point to the existence of some identifiable fact that would make the affirmative defense plausible on its face. Barnes v. AT&T Pension Benefit Plan-Nonbargained Program , 718 F.Supp.2d 1167, 1170, 1172 (N.D. Cal. 2010) (citing Wyshak v. City Nat'l Bank , 607 F.2d 824, 827 (9th Cir.1979)). "A matter is immaterial if it has no essential or important relationship to the claim for relief pleaded." Id . (citing Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on other grounds, 510 U.S. 517 , 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). "A matter is impertinent if it does not pertain and is not necessary to the issues in question in the case." Id . "A court must deny the motion to strike if there is any doubt whether the allegations in the pleadings might be relevant in the action." Oracle America, Inc. v. Micron Technology, Inc. , 817 F.Supp.2d 1128, 1132 (N.D. Cal. 2011). "However, a motion to strike is proper when a defense is insufficient as a matter of law." Id.

"Motions to strike are not favored and should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.'" Oracle America, Inc. , 817 F.Supp.2d at 1131 (quoting Colaprico v. Sun Microsys., Inc. , 758 F.Supp. 1335, 1339 (N.D. Cal. 1991)). In considering the motion, the court "must view the pleading in a light most favorable to the pleading party.'" Id . (quoting In re, Inc. Sec. Litig. , 114 F.Supp.2d 955, 965 (C.D. Cal. 2000)). Additionally, "the grounds for a motion to strike must appear on the face of the pleading under attack, or from matters which the court may judicial notice (e.g., the court's own files or records)." Schwarzer, et al., California: Federal Civil Procedure Before Trial, § 9:403 (Rev. #1 2014).[2]


A. Iqbal and ...

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