United States District Court, E.D. California
CALIFORNIA BREWING COMPANY, a California Corporation, Plaintiff/Counter Defendant,
3 DAUGHTERS BREWING LLC, a Florida Limited Liability Company, et al., Defendants/Counter Claimants.
California Brewing Company (“CBC”) moves to
strike affirmative defenses numbered 1, 2, 3, 4, 5, 6, 7, 8,
and 10 in this trademark action. ECF No. 28. In
response, defendants/counter-claimants 3 Daughters Brewing
LLC (“3 Daughters”) and LMMML LLC
(“LM”) move to amend the answer, arguing their
proposed amended answer “should resolve the issues
raised by CBC.” ECF No. 31 at 2. Defendants seek
to remove affirmative defenses numbered 1, 7, 8, and 10, add
factual allegations supporting their other affirmative
defenses, and add an affirmative defense for failure to
mitigate damages. See Proposed Am. Answer,
Defs.’ Response Ex. A, ECF No. 31-1. CBC opposes in
part defendants’ motion. ECF No. 32.
interest of judicial economy, the court considers both
motions together and decides the matter without a hearing. As
explained below, the court GRANTS IN PART and DENIES IN PART
Rule 12(f) of the Federal Rules of Civil Procedure, the court
may strike “from a pleading an insufficient defense or
any redundant, immaterial, impertinent or scandalous
matter.” Fed.R.Civ.P. 12(f); see Sidney-Vinstein v.
A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). A
defense may be insufficient as a matter of pleading or as a
matter of law. Sec. People, Inc., v. Classic Woodworking,
LLC, No. 04-3133, 2005 WL 645592, at *2 (N.D. Cal. Mar.
4, 2005). An affirmative defense is legally insufficient when
“it lacks merit under any set of facts the defendant
might allege.” Dodson v. Strategic Rests.
Acquisition Co. II, LLC, 289 F.R.D. 595, 603 (E.D. Cal.
2013) (citation omitted), abrogated on other grounds by
Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th
of the Federal Rules of Civil Procedure requires that a party
“state in short and plain terms” its defenses
when responding to a pleading. Fed.R.Civ.P. 8(b). An
affirmative defense is insufficient as a matter of pleading
where it fails to provide the plaintiff with “fair
notice” of the defense asserted. Wyshak v. City
Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979).
“The ‘fair notice’ required by the pleading
standards only requires describing the defense in
‘general terms.’” Kohler, 779 F.3d
at 1019 (quoting 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1274
(3d ed. 1998)). “Although fair notice is a low bar
that does not require great detail, it does require a
defendant to provide some factual basis for its affirmative
defenses.” Gibson Wine Co., 2016 WL 1626988,
at *5 (internal quotation marks and citations omitted).
“Simply identifying an affirmative defense by name does
not provide fair notice of the nature of the defense
or how it applies in [the] action . . . .” Bd. of
Trs. of IBEW Local Union No. 100 Pension Tr. Fund v.
Fresno’s Best Indus. Elec., Inc., No. 13-01545,
2014 WL 1245800, at *4 (E.D. Cal. Mar. 24, 2014) (emphasis in
original). In alleging fraud, including in an affirmative
defense, “a party must state with particularity the
circumstances constituting fraud.” Fed.R.Civ.P. 9(b);
Gold Club-SF, LLC v. Platinum SJ Enter., No.
13-03797, 2013 WL 6248475, at *3 (N.D. Cal. Dec. 3, 2013).
“Averments of fraud must be accompanied by the who,
what, when, where, and how of the misconduct charged.”
Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th
Cir. 2009) (internal quotation marks and citation omitted).
to strike are disfavored in part because of the limited
importance of pleading in federal practice, ”
Staggs, 2016 WL 880960, at *4 (citation omitted), a
proposition still valid after the Supreme Court’s
decisions in Twombly and Iqbal. Unless it
would prejudice the opposing party, courts freely grant leave
to amend stricken pleadings. See Wyshak, 607 F.2d at
826 (citing Fed.R.Civ.P. 15(a)(2); other citations omitted);
see also Ascon Props., Inc. v. Mobil Oil Co., 866
F.2d 1149, 1160 (9th Cir. 1989) (“stress[ing] Rule
15’s policy of favoring amendments”).
proposed amendments in the form of removing affirmative
defenses numbered 1, 7, 8, and 10 and adding factual
allegations to support the affirmative defense numbered 6
would cure the deficiencies raised in CBC’s motion to
strike with respect to those defenses. See ECF Nos.
28 & 31. CBC agrees to withdraw its motion with respect
to those defenses to the extent the court allows the proposed
amendments. ECF No. 32 at 2, 6-7. Good cause appearing, and
in light of the Federal Rules’ policy of favoring
amendments, the court GRANTS defendants leave to make the
proposed amendments with respect to affirmative defenses
numbered 1, 6, 7, 8, and 10. See Fed. R. Civ. P.
15(a)(2); Wyshak, 607 F.2d at 826. The court DENIES
AS MOOT CBC’s motion to strike affirmative defenses
numbered 1, 6, 7, 8, and 10.
argues affirmative defenses numbered 2, 3, 4, and 5 remain
deficient as pled in the proposed amended answer, and the
proposed additional affirmative defense for failure to
mitigate damages fails as a matter of pleading. ECF No. 32 at
2-6, 10. The court addresses each affirmative defense in
Second Affirmative Defense: Unclean Hands/Fraud
Second Affirmative Defense initially provided, “All of
California Brewing’s claims fail because its registered
trademark is was [sic] obtained through fraud and is
invalid.” Answer at 7, ECF No. 24. Defendants propose
the following amended defense:
California Brewing affirmed, under oath, that it was using
the BEACH BLONDE ALE mark in connection with actual sales of
beer at least as early as October 2007. That was a lie.
California Brewing did not use the BEACH BLONDE ALE mark in
commerce until many years later, in 2014. In granting a
federal registration, the U.S. Patent & Trademark Office
relied on California Brewing’s false statement that it
was using the BEACH BLONDE ALE mark on beer that California
Brewing was selling in commerce. Since California Brewing was
not selling any beer until seven years after filing the
application, the federal trademark registration for BEACH
BLODNE [sic] ALE was void from the beginning. Therefore, all
of California Brewing’s claims fail because its
registered trademark is was [sic] obtained through fraud and
Am. Answer at 7 (“First Affirmative Defense: Unclean
allegations do not meet Rule 9(b)’s particularity
requirements for averments of fraud. The court therefore
STRIKES this affirmative defense. However, it appears
defendants could satisfy Rule 9(b)’s pleading
requirements by incorporating other allegations pled in the
proposed amended answer and counterclaim. See
Proposed Am. Answer at 12-17. Accordingly, the court ...