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Footbalance System Inc. v. Zero Gravity Inside, Inc.

United States District Court, S.D. California

September 5, 2017

ZERO GRAVITY INSIDE, INC., et al., Defendants.


          Hon. Janis L. Sammartino United States District Judge.

         Presently before the Court is Plaintiffs' Motion to Strike Defendants' Affirmative Defenses. (“MTS, ” ECF No. 59.) Also before the Court are Defendants' Response in Opposition to Plaintiffs' MTS, (“Opp'n, ” ECF No. 65), and Plaintiffs' Reply in Support of their MTS, (“Reply, ” ECF No. 66). The Court vacated the hearing on the matter and took the motion under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 67.) After considering the parties' arguments and the law, the Court rules as follows.


         Rule 12(f) provides that the court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “The function of a 12(f) motion to strike 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) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)). Accordingly, “[a] defense may be struck if it fails to provide ‘fair notice' of the basis of the defense.” Inc. v. eHelp Corp., 315 F.Supp.2d 1046, 1048 (N.D. Cal. 2004); see also Wyshak v. City Nat'l Bank, 607 F.2d 824, 826 (9th Cir. 1979).

         “Motions to strike are ‘generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice.'” Cortina v. Goya Foods, Inc., 94 F.Supp.3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales v. Citibank, 133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001)). “[M]otions to strike 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.” Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991). “When ruling on a motion to strike, this Court ‘must view the pleading under attack in the light most favorable to the pleader.'” Id. (citing RDF Media Ltd. v. Fox Broad. Co., 372 F.Supp.2d 556, 561 (C.D. Cal. 2005)).

         Finally, this Court recently held that the Twombly and Iqbal pleading standard applies to affirmative defenses. Rahman v. San Diego Account Service, No. 16CV2061-JLS (KSC), 2017 WL 1387206 (S.D. Cal. Apr. 18, 2017). While the Court acknowledged that district courts are split on the issue, it ultimately determined that Wyshak's “fair notice” standard, which relied on the sole case of Conley v. Gibson, 355 U.S. 41 (1957), had necessarily been abrogated by the Supreme Court's decisions in Twombly and Iqbal. Id. at *2. “Accordingly, ‘fair notice' necessarily now encompasses the ‘plausibility' standard; whatever standard ‘fair notice' previously encompassed no longer exists.” Id. Thus, the Court here reviews Defendants' affirmative defenses for plausibility.


         Plaintiff seeks to strike Defendants' Second Affirmative Defense of Invalidity, Fourth Affirmative Defense of Equitable Doctrines, Seventh Affirmative Defense of Inadequate Pre-Suit Investigation, Eighth Affirmative Defense of Inequitable Conduct, and Ninth Affirmative Defense of Fraud on the United States Patent and Trademark Office (“USPTO”). (See generally MTS.) The Court considers each in turn.

         I. Second Affirmative Defense of Invalidity

         Defendants' second affirmative defense of invalidity alleges: “One or more claims of the '433 patent and '589 patent are invalid for the failure to satisfy the preconditions of patentability set forth in 35 U.S.C. §§ 101, 102, 103, 112, and/or 116.” (MTS 7-8[1] (citing Def. Zero Gravity Inside, Inc.'s (“ZGI”) Ans. 9, ECF No. 54).) Plaintiffs argue that this assertion fails to place Plaintiffs on notice of the particular factual or legal basis for this alleged defense. (Id. at 8.)

         The Court agrees. As discussed above, in the absence of binding authority to the contrary, the Court applies the Twombly/Iqbal standard to Defendants' pleading of their affirmative defenses. The Court previously explained that

[s]ince Twombly and Iqbal, district courts in the Ninth Circuit have come to differing conclusions regarding whether those cases necessitate a different interpretation of Wyshak's “fair notice” standard. See, e.g., J & J Sports Prods., Inc. v. Scace, No. 10CV2496-WQH-CAB, 2011 WL 2132723, at *1 (S.D. Cal. May 27, 2011) (discussing split). Ultimately, this Court agrees with the numerous district courts that have concluded the Twombly and Iqbal “plausibility” standard applies with equal force to the pleading of affirmative defenses. Although there is a valid question as to whether the logic of Twombly and Iqbal-rendered in the context of Rule 8(a)-applies with equal force to Rule 8(c) governing affirmative defenses, this Court concludes that Wyshak compels application of the plausibility standard to pleading affirmative defenses. Specifically, the only case Wyshak cited to support its “fair notice” standard is Conley v. Gibson, 355 U.S. 41, 47-48 (1957), Wyshak, 607 F.2d at 827, and Conley has since been abrogated insofar as it permitted pleading at a standard lower than Twombly's plausibility standard, see Twombly, 550 U.S. at 555, 560-61 (citing Conley for “fair notice” rule statement immediately prior to articulating “plausibility” standard and expressly abrogating Conley's “no set of facts” language). Accordingly, “fair notice” necessarily now encompasses the “plausibility” standard; whatever standard “fair notice” previously encompassed no longer exists. E.g., Madison v. Goldsmith & Hull, No. 5:13-CV-01655 EJD, 2013 WL 5769979, at *1 (N.D. Cal. Oct. 24, 2013); Gonzalez v. Heritage Pac. Fin., LLC, No. 2:12-CV-01816-ODW, 2012 WL 3263749, at *2 (C.D. Cal. Aug. 8, 2012); Perez v. Gordon & Wong Law Grp., P.C., No. 11-CV-03323-LHK, 2012 WL 1029425, at *6-8 (N.D. Cal. Mar. 26, 2012).

Rahman, 2017 WL 1387206, at *2; see also Malibu Media, LLC v. Peterson, No. 16-CV-786 JLS (NLS), 2017 WL 1550091, at *3 (S.D. Cal. May 1, 2017) (applying the Twombly/Iqbal standard to pleading affirmative defenses). Although Defendants urge the Court to reverse course, (Opp'n 10-11), the Court will not do so based simply on non-binding caselaw that predates this Court's Rahman decision. (See Id. (citing Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 468 (S.D. Cal. 2013).)

         To be sure, Defendants attempt to distinguish Rahman in their efforts to avoid applicability of the Twombly/Iqbal pleading standards to their affirmative defenses. They first argue that “the clear distinguishing point” is that Rahman did not involve patent infringement claims. (Opp'n 11.) But there is nothing inherently clear about that. Nor do Defendants explain why that difference matters, much less why it clearly matters. To the contrary, this Court-and others-have recently held that Twombly/Iqbal applies, for example, to complaints for patent infringement. See, e.g., Scripps Research Inst. v. Illumina, Inc., No. 16-CV-661 JLS (BGS), 2016 WL 6834024, at *5 (S.D. Cal. Nov. 21, 2016) (explaining that Twombly/Iqbal apply to pleading patent infringement claims); Footbalance Sys. Inc. v. Zero Gravity Inside, Inc., No. 15-CV-1058 JLS (DHB), 2016 WL 5786936, at *3 (S.D. Cal. Oct. 4, 2016) ...

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