United States District Court, S.D. California
FOOTBALANCE SYSTEM INC. and FOOTBALANCE SYSTEM OY, Plaintiffs,
ZERO GRAVITY INSIDE, INC., et al., Defendants.
ORDER ON MOTION TO STRIKE (ECF NO. 59)
Janis L. Sammartino United States District Judge.
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
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.”
Qarbon.com 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).
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)).
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.
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
Second Affirmative Defense of Invalidity
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 (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.)
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
[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).)
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) ...