J & J Sports Productions, Inc. v. Vega
MEMORANDUM OPINION AND ORDER finding as moot 13 Motion to Strike and 22 Motion for Leave to File; granting 11 Response/Motion to Extend Deadline ; denying 20 Motion to Strike. Signed by Honorable Timothy L. Brooks on February 16, 2016. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
J & J SPORTS PRODUCTIONS, INC.
CASE NO. 5:15-CV-5199
EDWARD VEGA, individually and
d/b/a SPRINGDALE CIVIC CENTER
MEMORANDUM OPINION AND ORDER
Currently before the Court are Defendant Edward Vega 's Response to Notic~ of
Default Procedure (Doc. 11 ), which the Court will construe as a motion to extend the
deadline for responsive pleading; Plaintiff J & J Sports Productions, lnc. 's ("J&J") Motion
to Strike Defendant's Affirmative Defenses and Reservation (Doc. 13), Mr. Vega 's
Response (Doc. 16), and J&J's Reply (Doc. 18); J&J 's Motion to Strike Defendant's
Amended Answer (Doc. 20) , and Mr. Vega 's Response (Doc. 23); and Mr. Vega 's Motion
for Leave to File Amended Answer to Complaint (Doc. 22). For the reasons given below,
Mr. Vega 's motion to extend deadline for responsive pleading (Doc. 11) is GRANTED ,
J&J 's December 24 Motion to Strike (Doc. 13) and Mr. Vega 's Motion for Leave to File
Amended Answer (Doc. 22) are MOOT, and J&J 's January 27 Motion to Strike (Doc. 20)
I. Mr. Vega's Motion to Extend Deadline for Responsive Pleading
J&J 's Complaint was filed on August 21 , 2015 , and then finally served on Mr. Vega
on November 10, 2015. Mr. Vega filed his Answer (Doc. 10) on December 7, 2015 , which
was six days beyond the 21-day deadline imposed by Fed . R. Civ. P. 12(a)(1 )(A)(i). The
next day, Mr. Vega filed a Response to Notice of Default Procedure, explaining that his
tardiness was the result of a good-faith calendaring error on the part of his attorney, (Doc.
11 , ~ 9) , and moving "this Court to enlarge the time appropriate for filing an Answer in this
case to December 7, 2015 ," id.
11 . Fed . R. Civ. P. 6(b)(1 )(B) authorizes this Court
to extend the deadline for Mr. Vega to file his answer "on motion made after the time has
expired if the party failed to act because of excusable neglect. " The Court finds that the
calendaring error by Mr. Vega 's attorney was excusable neglect because it was a good
faith error resulting in minimal delay, and because permitting the Answer to be filed will
not unfairly prejudice J&J. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P 'ship ,
507 U.S. 380, 395 (1993); Kaubisch v. Weber, 408 F.3d 540 , 542-43 (8th Cir. 2005).
Therefore, Mr. Vega 's motion to extend deadline for responsive pleading (Doc. 11) is
GRANTED , and Mr. Vega 's Answer is considered timely filed .
II. J&J's First Motion to Strike, and Mr. Vega's Motion for Leave
On December 24 , 2015 , J&J filed a Motion to Strike (Doc. 13) certain portions of
the "defenses" section in Mr. Vega 's Answer. Then , on January 6, 2016 , Mr. Vega filed
an Amended Answer (Doc. 15) along with a Response (Doc. 16), arguing that the filing
of his Amended Answer mooted the issues raised in J&J 's Motion . J&J countered in its
Reply (Doc. 18) that Mr. Vega 's Amended Answer was not properly before the Court
because , under Fed. R. Civ. P. 15(a)(2), a party may not amend a pleading more than 21
days after serving it without "the opposing party's written consent or the court's leave."
However, the same Rule also states that "[t)he court should freely give leave when justice
so requires ." Id. The Court finds here that justice so requires , and therefore retroactively
and sua sponte grants Mr. Vega leave to file his Amended Answer. This ruling renders
MOOT J&J 's December 24 Motion to Strike (Doc. 13), as well as Mr. Vega's belated
Motion for Leave to File Amended Answer (Doc. 22), which was filed on February 9, 2016.
Ill. J&J's Second Motion to Strike
The sole remaining motion before the Court is J&J 's second Motion to Strike (Doc.
20), filed on January 27, 2016, pertaining to Mr. Vega 's Amended Answer. As a threshold
matter, J&J argues that the heightened pleading standard announced in Be// Atlantic
Corp. v. Twombly, 550 U.S. 544 (2009), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
should apply to affirmative defenses, negating the older Eighth Circuit rule that the "bare
assertion" of an affirmative defense could provide sufficient notice to a plaintiff. Zotos v.
Lindbergh Sch. Dist., 121 F.3d 356 , 361 (8th Cir. 1997). In support of this contention ,
J&J asserts that "several district courts .. . within the Eighth Circuit" have applied
Twombly to pleadings of affirmative defenses. However, this Court has previously ruled
otherwise , and is not in the business of departing from its own precedent absent a very
compelling reason to do so:
The heightened pleading standards set forth by the Supreme Court in
[Twombly and lqba~ do not appear to apply to affirmative defenses.
Moreover, "imposing a heightened standard on a defendant to plead facts
showing 'plausibility' of the affirmative defenses seems unreasonable in
light of the time frame the defendant has to respond to the complaint. Ash
Grove Cement Co. v. MMR Constructors, Inc. , 2011WL3811445 , *2 (W.D.
Ark. Aug. 29 , 2011 ).
Chavez v. Montes, 2015 WL 3604226 , at *1 (W.D. Ark. Jun. 5, 2015) (alteration omitted).
Although this Court has the discretion to strike pleadings under Fed . R. Civ. P.
12(f), motions to strike request "an extreme measure" and are therefore "viewed with
disfavor and are infrequently granted ." Id. (quoting Stanbury Law Firm v. l.R.S. , 221 F.3d
1059, 1063 (8th Cir. 2000)). Therefore , this Court will not strike an affirmative defense
unless the moving party can "demonstrate that the defense [is] immaterial, implausible,
and/or wholly unrelated to the claims at issue in the lawsuit. "1 Id. In this lawsuit, the
claims at issue arise from allegations that Mr. Vega knowingly intercepted and published
without authorization a televised fight between Floyd Mayweather, Jr. and Saul Alvarez
to which J&J had exclusive nationwide commercial distribution rights. (Doc. 1,
First, J&J argues that the Court should strike the Amended Answer's assertions in
paragraph 33 that the Complaint fails "to state facts upon which relief can be granted
under Rule 12(b)(6)" and fails "to join a party under Rule 19." But there simply is no
practical purpose to be served by striking these defenses, since Rule 12(h)(2) expressly
preserves their availability all the way to trial, regardless of whether they are raised in a
responsive pleading. Mr. Vega has not moved the Court to dismiss this case for failure
to state a claim or failure to join a party, and striking these defenses from his Amended
Answer would not prevent him from so moving at a later time; effectively, he has simply
put J&J on notice, however minimal, that he is contemplating filing such motions, despite
having been under no legal , ethical , or prudential obligation to provide J&J any notice at
all. Perhaps, then, such notice is technically "redundant," Fed. R. Civ. P. 12(f), but it is
quite harmless to J&J, and the Court sees no point in striking it.
J&J also asks the Court to strike paragraph 35 of the Amended Complaint, which
states that "any award of damages to the Plaintiff should be reduced to $100 .00 or
$250 .00 . . . to reflect the Defendant's unwitting violation of the law." The sole justification
That said , rather than immediately striking such defenses, this Court's practice is to first
impose a deadline by which defendants must buttress them with supporting factual
allegations . Typically, the Court requires such pleading amendments to be made within
90 days of the Rule 16 case management conference.
J&J offers for striking this paragraph is that it "is not an affirmative defense, but a denial
of an element of Plaintiff's causes of action ." (Doc. 21 , p. 8) . Since the Amended Answer
does not characterize paragraph 35 's assertions as an affirmative defense, the Court fails
to see the problem here and will not strike the challenged language .2
Turning to paragraph 34 of the Amended Complaint, J&J requests that Mr. Vega 's
assertion of "the affirmative defenses of estoppel , license and payment" be stricken .
Regarding license and payment, J&J argues that in this case they can only, "at best, . ..
contradict and den[y] the allegations of the Complaint," which would mean they are not
"affirmative" in character. Id. Here, as is so often the case, this Court believes Wright
and Miller put it best:
In attempting to controvert an allegation in the complaint, a defendant
occasionally may label his negative averment as an affirmative defense
rather than as a specific denial. But as long as the pleading clearly indicates
the allegations in the complaint that are intended to be placed in issue, the
improper designation should not operate to prejudice the pleader. If the
plaintiff has been given 'plain notice' of the matters to be litigated , which is
all the federal pleading rules require , he should be put to his proof on those
issues irrespective of any error by the defendant regarding terminology.
The federal courts have accepted the notion of treating a specific denial that
has been improperly denominated as an affirmative defense as though it
were correctly labeled . This is amply demonstrated by the fact that research
has not revealed a single reported decision since the promulgation of the
federal rules in which an erroneous designation resulted in any substantial
prejudice to the pleader.
5 Wright and Miller, Federal Practice and Procedure : Civil 3d § 1269 (emphasis added).
Regard ing estoppel , J&J argues that the Amended Answer provides insufficient
notice, as "simply stating 'estoppel' leaves Plaintiff in the position of having to guess wh ich
Presumably J&J is not contending that an answer is an inappropriate place for a
defendant to "deny the allegations asserted against it by an opposing party ." Fed . R. Civ.
P. 8(b)(1 )(B ).
estoppel theory is being raised ." (Doc. 21 , p. 7) . Notably absent from J&J's argument,
though , is any contention that the affirmative defense of estoppel bears no relation to the
claims at issue in this lawsuit. The Court is unwilling to rule that estoppel is "immaterial,
implausible , and/or wholly unrelated to the claims at issue in [this] lawsuit," supra , at p. 4,
in the absence of any authority indicating that it is generally unavailable as a defense to
claims of this nature. Compare Travelers Exp. Co. , Inc. v. Am. Exp. Integrated Payment
Sys. Inc., 80 F. Supp. 2d 1033, 1038 (D. Minn. 1999) (implied license by equitable
estoppel is a valid affirmative defense to patent infringement actions), and Agriliance,
L.L.C. v. Runnells Grain Elevator, Inc. , 272 F. Supp. 2d 800 , 807 (S.D. Iowa 2003)
("Equ itable estoppel is a valid defense to a conversion cla im under the Food Security Act
and is determined under state law."), with Chavez, 2015 WL 3604226 , at *2 (citing
Copeland v. ABB, Inc., 521 F.3d 1010, 1014 (8th Cir. 2008), for the rule that estoppel
generally is not typically a proper defense to wage-and-hour claims under the Fair Labor
Finally, J&J asks this Court to strike paragraph 37 of the Amended Answer, which
"reserve[s] the right to plead further, by amendment, additional third-party practice , or
otherwise , pending further investigation and discovery," on the grounds that there is no
right to reserve here beyond that already provided by the Federal Rules. As with the
earlier discussion of the defenses of failure to state a claim and failure to join, the Court
does not believe it makes any practical difference whether this language is in or out of the
pleadings; the Court does not understand this paragraph to be saying anything other than
simply that Mr. Vega anticipates the possibility of seeking leave under Fed. R. Civ. P. 14
or 15 to plead further at some later stage in th is case . Although there was no need for
Mr. Vega to include this declaration in his Amended Answer, its inclusion does no harm
to anyone and the Court does not see any point in striking it.
IT IS THEREFORE ORDERED that Mr. Vega's motion to extend deadline for
responsive pleading (Doc. 11) is GRANTED , J&J 's December 24 Motion to Strike (Doc.
13) and Mr. Vega 's Motion for Leave to File Amended Answer (Doc. 22) are MOOT, and
J&J 's January 27 Motion to Strike (Doc. 20) is DENIED . Now that these issues have been
resolved , the Court is optimistic that Mr. Vega will have no further difficulties complying
with deadlines and that J&J will have no further need to seek the intervention of this Court
on fine-grained pleading technicalitiel h ..\)
IT IS SO ORDERED on this
day of Febr
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