United States District Court, N.D. California
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
STRIKE AFFIRMATIVE DEFENSES RE: DKT. NO. 162
GONZALEZ ROGERS, UNITED STATES DISTRICT COURT JUDGE.
Products and Ventures International brings this action
against defendants for alleged breaches of contract and tort
claims relating to a wooden pencil distribution agreement.
The Court previously granted in part defendants' motion
to dismiss certain claims and parties from the litigation.
(Dkt. No. 144.) Pursuant to such order, the following claims
and parties remain at issue: (i) breach of contract and
breach of the implied covenant of good faith and fair dealing
against Roberta Trading Corporation; and (ii) intentional
interference with contract and intentional interference with
prospective economic advantage against Andre Viegas.
(Id. at 2.) As such, on February 1, 2017, the
remaining defendants filed their answer to the amended
complaint. (Dkt. No. 148.)
before the Court is plaintiff's motion to strike certain
affirmative defenses contained in defendants' answer,
pursuant to Federal Rule of Civil Procedure 12(f). Having
carefully reviewed the pleadings and the papers submitted on
this motion, and for the reasons set forth more fully below,
the Court Grants in Part plaintiff's
motion and strikes the ninth, tenth, eleventh, thirteenth,
and fourteenth affirmative defenses without prejudice and the
first, fifth, sixth, ninth, twelfth, and fifteenth
affirmative defenses with prejudice.
Court adopts the “Background” section in its
order at Docket Number 144 on defendants' motion to
dismiss, and adds the following facts and allegations
relevant to the instant motion:
Roberta Trading and Andre Viegas filed their answer to the
amended complaint on February 1, 2017. (Dkt. No. 59.) As part
of such answer, defendants raised the following fifteen
affirmative defenses: (i) failure to state a claim; (ii)
dismissal of claims barred by court order; (iii) claims
outside limitations period; (iv) lack of personal
jurisdiction; (v) breach of contract by plaintiff; (vi)
defendants' substantial compliance and/or compliance with
contractual obligations; (vii) excuse, impossibility, or
impracticability of performance as justification for
non-performance; (viii) prevention of performance; (ix)
termination of contract; (x) lack of consideration; (xi)
failure to mitigate damages; (xii) no recovery of relief
requested; (xiii) unclean hands, laches, estoppel, release,
accord and satisfaction, setoff, and waiver; (xiv) fraud,
fraud in the inducement, deceit and/or misrepresentation; and
(xv) reservation of rights to assert additional defenses.
(Id. at 59-61.)
seeks to strike all but the second and fourth of these
affirmative defenses arguing that (i) the first, fifth,
sixth, ninth, twelfth, and fifteenth “affirmative
defenses” are not, in fact, affirmative defenses and
(ii) the third, seventh, eighth, ninth, tenth, eleventh,
thirteenth, and fourteenth fail to meet the pleading
standards of Rule 8 and Rule 9(b) for defenses alleging
Rule of Civil Procedure 12(f) provides that a court may
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” A defense may be insufficient as a matter of
pleading or a matter of law. Security People, Inc. v.
Classic Woodworking, LLC, No. 04-CV-3133, 2005 WL
645592, at *2 (N.D. Cal. Mar. 4, 2005). “The key to
determining the sufficiency of pleading an affirmative
defense is whether it gives plaintiff fair notice of the
defense.” Wyshak v. City Nat. Bank, 607 F.2d
824, 827 (9th Cir. 1979) (citation omitted). What constitutes
fair notice depends on the particular defense in question.
See Haskins v. Cherokee Grand Ave., LLC, No.
11-CV-5142-YGR, 2012 WL 1110014, at *2 (N.D. Cal. Apr. 2,
2012). While a defense need not include extensive factual
allegations in order to give fair notice, see Security
People, Inc., 2005 WL 645592, at *2, bare statements
reciting mere legal conclusions may not be sufficient,
see CTF Development, Inc. v. Penta Hospitality, LLC,
No. 09-CV-2429, 2009 WL 3517617, at *7 (N.D. Cal. Oct. 26,
strike an affirmative defense, the moving party must
demonstrate “that 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.” Cal. Dep't of Toxic Subst. Control v.
Alco Pac., Inc., 217 F.Supp.2d 1028, 1032 (C.D. Cal.
2002) (quoting SEC v. Sands, 902 F.Supp. 1149, 1165
(C.D. Cal. 1995)). “The grounds for the motion must
appear on the face of the pleading under attack or from
matter which the court may judicially notice.”
Sands, 902 F.Supp. at 1165. When considering a
motion to strike, the Court “must view the pleadings in
a light most favorable to the pleading party.” In
re 2TheMart.com, Inc., Sec. Litig., 114 F.Supp.2d 955,
965 (C.D. Cal. 2000).
motions to strike a defense as insufficient are disfavored,
they will not be granted if the insufficiency of the defense
is not clearly apparent. Sands, 902 F.Supp. at 1165
(“Even when the defense under attack presents a purely
legal question, courts are reluctant to determine disputed or
substantial questions of law on a motion to strike.”).
“Where a court strikes an affirmative defense, leave to
amend should be freely given so long as there is no prejudice
to the moving party.” Haskins, 2012 WL 1110014
at *3 (citing Wyshak, 607 F.2d at 826).
Improper Affirmative Defenses
first argues that defendants' first, fifth, sixth, ninth,
twelfth, and fifteenth affirmative defenses should be
stricken because they are not actually affirmative defenses.
“A defense which demonstrates that plaintiff has not
met its burden of proof is not an affirmative defense.”
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088
(9th Cir. 2002) (holding that defendants did not waive
certain defenses because the plaintiff bore the burden of
proof on such elements and therefore defendant had no need to
plead plaintiff's failure to meet such burden as an
affirmative defense); see Barnes v. AT&T Pension Ben.
Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1173-74
(N.D. Cal. 2010) (striking certain “affirmative”
defenses as redundant where defendant did not have the burden
to prove such defenses, explaining that an “affirmative
defense, under the meaning of Federal Rule of Civil Procedure
8(c), is a defense that does not ...