J & J Sports Productions, Inc. v. Helper et al
Filing
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MEMORANDUM DECISION and ORDER Regarding Plaintiff's 11 Motion to Strike, signed by Judge Oliver W. Wanger on 5/23/2011. (The second and fifth affirmative defenses alleged in the Answer are STRICKEN; and Defendants shall file an amended answer within fifteen (15) days of electronic service of this decision.)(Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:10-cv-02109-OWW-SMS
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J & J SPORTS PRODUCTS, INC.,
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MEMORANDUM DECISION AND ORDER
REGARDING PLAINTIFF’S MOTION
TO STRIKE (Doc. 11)
Plaintiff,
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v.
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IAN DOUGLAS HELPER, et al.,
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Defendants.
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I. INTRODUCTION.
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J & J Sports Products, Inc., (“Plaintiff”) proceeds with an
action for damages against Ian Douglas Helper and Stephen David
Helper (“Defendants”).1
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On February 23, 2011, Ian Douglas Helper and Stephen David
Helper filed an answer to Plaintiff’s complaint (“Answer”).
8).
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Plaintiff
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filed
a
motion
to
strike
various
defenses asserted in the Answer on March 16, 2011.
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(Doc.
affirmative
(Doc. 11).
Defendants filed opposition to Plaintiff’s motion to strike on
April
22,
Plaintiff’s
2011.
motion
(Doc.
only
13).
with
Defendants
respect
to
opposition
affirmative
opposes
defenses
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Jeremy Porter Helper is also a named Defendant, however, he filed a separate
answer on March 16, 2011, (Doc. 12), and that answer is not implicated in the
instant motion.
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numbers two and five.
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(Doc. 14).
II. FACTUAL BACKGROUND.
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Plaintiff filed a reply on March 2, 2011.
Plaintiff was granted the exclusive nationwide commercial
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distribution
rights
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Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight
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Program”
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(“Program”).
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program at their commercial establishment.
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III. LEGAL STANDARD.
telecast
to
a
program
nationwide
on
entitled:
Saturday,
“Firepower:
November
Manny
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2009
Defendants unlawfully intercepted and exhibited the
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District courts may strike from a pleading an insufficient
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defense or any redundant, immaterial, impertinent, or scandalous
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matter. Fed. R. Civ. P. 12(f).
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strike is to avoid the expenditure of time and money that must
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arise from litigating spurious issues by dispensing with those
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issues prior to trial.
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F.3d 970, 973 (9 th Cir. 2010).
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has no essential or important relationship to the claim for relief
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or the defenses being plead.
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consists of statements that do not pertain, and are not necessary,
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to the issues in question.
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and infrequently granted." E.g., NRDC v. Kempthorne, 539 F. Supp.
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2d 1155, 1162 (E.D. Cal. 2008).
Whittlestone, Inc. v. Handi-Craft Co., 618
Immaterial matter is that which
Id.
Id. at 974.
Impertinent matter
"Motions to strike are disfavored
IV. DISCUSSION.
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The function of a 12(f) motion to
Defendants
do
not
oppose
Plaintiff’s
motion
to
strike
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affirmative defenses 1, 3, 4, 6, 7, 8, 9, and 10 asserted in the
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Answer.
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second and fifth affirmative defenses asserted in the Answer.
Defendants only oppose Plaintiff’s motion to strike the
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The second affirmative defense alleges:
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Defendants allege that Ian Douglas Helper and Stephen
David Helper cannot be held individually liable for
actions, if any, of Defendant Tilted Kilt or its agents,
employees, or other representatives because Defendants
Ian Douglas Helper and Stephen David Helper were not
present at the time of any alleged violation, were
unaware of and did not authorize any act that may have
violated Plaintiff’s rights, were not officers of the
corporation, and Ian Douglas Helper and Stephen David
Helper did not reap any commercial profit from any
alleged violation.
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The second affirmative defense is unintelligible, as it does not
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appear to be an affirmative defense at all.2
See, e.g., FDIC v.
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Main Hurdman, 655 F.Supp. 259, 262 (E.D.Cal.1987) (“Affirmative
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defenses plead matters extraneous to the plaintiff's prima facie
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case,
which
deny
plaintiff's
right
to
recover,
even
if
the
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allegations of the complaint are true.").
Further, the second
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affirmative defense references a corporation, but there is no
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corporate defendant in this action.
As the second affirmative
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defense does not provide fair notice of the nature of the defense,
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it is stricken, without prejudice.
See, e.g., Wyshak v. City
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National Bank, 607 F.2d 824, 827 (9th Cir.1979) (“The key to
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determining the sufficiency of pleading an affirmative defense is
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whether it gives plaintiff fair notice of the defense.").
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The fact that the contentions presented in the second and fifth affirmative
defenses may be improperly labeled as "affirmative defenses" does not render them
"insufficient defenses" within the meaning of Rule 12. See In re Wash. Mut.,
Inc. Sec., Derivative & ERISA Litigation, 2011 U.S. Dist. LEXIS 33531 *22-24
(W.D. Wa. 2011) ("Though improperly pleaded, these affirmative defenses are
related to the litigation and are not immaterial, impertinent or scandalous. The
Court will simply consider them not as affirmative defenses, but as general
denials or objections"); see also J & J Sports Prods. v. Khachatrian, 2011 U.S.
Dist. LEXIS 22800 *3-4 (D. Arizona 2011) ("Accordingly, the Court interprets
Defendants' affirmative defense as a Rule 12(b)(6) defense, of which Plaintiff
has fair notice, and will not strike it.").
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The fifth affirmative defense asserted in the Answer is also
deficient.
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The fifth affirmative defense provides:
Defendants allege that the damages of plaintiff, if any,
as alleged were not caused by these answering Defendants,
but were the result of the acts of third parties over
which the answering Defendants, or each of them, had no
control.
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The fifth affirmative defense does not plead sufficient factual
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information to give Plaintiff fair notice of the defense as it
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fails to identify any third parties or their acts or omissions.
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The fifth affirmative defense is stricken, without prejudice.
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ORDER
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For the reasons stated, IT IS ORDERED:
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1) The second and fifth affirmative defenses alleged in the
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Answer are STRICKEN; and
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2) Defendants shall file an amended answer within fifteen (15)
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days of electronic service of this decision.
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IT IS SO ORDERED.
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Dated:
hkh80h
May 23, 2011
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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