J & J Sports Productions, Inc. v. Luhn et al

Filing 24

ORDER signed by Judge John A. Mendez on 10/24/11 ORDERING that Defendants' MOTION to DISMISS is GRANTED in part and DENIED in part as follows: Plaintiff's unopposed Motion to Strike Defendants' affirmative defenses 1-4 is GRANTED; Plaintiff's Motion to Strike Defendants' affirmative defenses 5-7 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff,
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v.
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PETER JAMES LUHN and CORBIN
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JERRETT POIRIER, individually,
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and d/b/a/ MATINEE a/k/a CIBO DI )
VINO & THE MATINEE LOUNGE,
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Defendants.
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)

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Case No. 2:10-CV-03229 JAM-CKD
ORDER DENYING IN PART AND
GRANTING IN PART PLAINTIFF‟S
MOTION TO STRIKE DEFENDANTS‟
AFFIRMATIVE DEFENSES

This matter comes before the Court on J & J Sports

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Productions, Inc.‟s (“Plaintiff‟s”) Motion to Strike Defendants‟

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Affirmative Defenses (“MTS”) (Doc. #15) contained in Peter James

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Luhn and Corbin Jerrett Poirier, individually, and d/b/a/ Matinee

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a/k/a Cibo Di Vino & The Matinee Lounge‟s (collectively

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“Defendants‟”) Answer to Complaint (“Answer”) (Doc. #12).

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Defendants oppose the motion in part (“Opposition”) (Doc. #20).1

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that Defendants intercepted the Oscar De La
Hoya v. Manny Pacquiao Welterweight Championship Fight program

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g).
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(“the Program”) when it was broadcast on December 6, 2008 and

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caused it to be exhibited at their place of business without

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Plaintiff‟s authorization.

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distributor of the Program, and assignee of the Copyright in the

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Program for enforcement purposes.

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alleging violations of the Copyright Act, 17 U.S.C. §§ 101-1332, a

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cause of action based on the state law tort of conversion, and

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violations of California Business and Professions Code § 17200, et

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seq.

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Plaintiff is the nationwide commercial

Plaintiff filed this lawsuit

Defendants deny the allegations in the complaint, and assert

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seven affirmative defenses: 1) Failure to State a Claim for Relief,

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2) Failure to Mitigate, 3) Third Party Acts, 4) No Proximate

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Causation, 5) License/Bonafide Purchaser, 6) Failure to Join an

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Indispensable Party, and 7) Equitable Estoppel.

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strike all seven affirmative defenses.

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This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1367.

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Plaintiff seeks to

II.
A.

OPINION

Legal Standard

A Motion to Strike is brought pursuant to Federal Rule of
Civil Procedure 12(f).
Rule 12(f) provides in pertinent part that the Court
may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter. . . . Motions to strike are
disfavored and infrequently granted. A motion 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.

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Bassett v. Ruggles, No. CV-F-09-528-OWW-SMS, 2009 WL 2982895,

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at *24 (E.D. Cal. Sept. 14, 2009) (internal citations
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omitted).2

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pleading, including affirmative defenses.

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12(f).

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plaintiff's prima facie case, which deny plaintiff's right to

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recover, even if the allegations of the complaint are true.”

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Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262

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(E.D. Cal. 1987).

A motion to strike applies to any part of a
F. R. Civ. Proc.

“Affirmative defenses plead matters extraneous to the

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“[A motion to strike] should only be granted if the

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matter . . . may prejudice one or more of the parties to the

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suit.”

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1121, 1128 (N.D. Cal. 2009) (internal citations omitted).

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Prejudice may be found where superfluous pleadings may confuse

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the jury, or where a party may be required to engage in

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burdensome discovery around frivolous matters.

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Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D. Cal.

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2003) (avoiding confusion); Canadian St. Regis Band of Mohawk

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Indians ex rel. Francis v. New York, 278 F.Supp.2d 313, 325

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(N.D. N.Y. 2003) (avoiding increased expense and burdensome

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discovery).

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B.

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N.Y. City Employees' Ret. Sys. v. Berry, 667 F.Supp.2d

Neilson v.

Discussion
1.

Defenses 1-4

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Plaintiff argues that the first four affirmative defenses

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pleaded by Defendants fail to meet the Rule 8(c) pleading standard

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for answers and that the pleaded defenses are legally insufficient.

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Plaintiff correctly points out that the Ninth Circuit has not yet
determined whether the Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007), pleading standard applies to answers filed under Rule 8(c).
See Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.
Supp. 2d 1167, 1171 (N.D. Cal. 2010). The Court declines to reach
this issue as doing so is not necessary to resolve the present
motion.
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MTS, at 6-8.

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these four affirmative defenses.

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is GRANTED with respect to the first four affirmative defenses in

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Defendants‟ Answer.

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Defendants do not oppose the motion with regard to

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Accordingly, Plaintiff‟s motion

License/Bona Fide Purchaser

Defendants allege in their Answer that they were granted a

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license to display the Program by an entity, Comcast of California

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XIII (“Comcast”), which was a sublicensee of Plaintiff.

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6.

Answer, at

Plaintiff responds that Comcast was not a sublicensee of

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Plaintiff.

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Defendants‟ defense is legally valid, it is not correctly pleaded.

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MTS, at 8.

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MTS, at 7.

Plaintiff also argues that even if

The Court agrees with Plaintiff that this affirmative defense

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is misclassified as „affirmative,‟ because it deals directly with

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an element of Plaintiff‟s prima facie claim of Copyright

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infringement.

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Defendants‟ showing of the Program occurred without permission.

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Complaint (Doc. #1) ¶ 15.

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presumably on the grounds that they had permission.

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Since this defense deals only with an element of Plaintiff‟s prima

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facie case, authorization to show the Program, and Defendants

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already denied the allegation that they lacked permission, this

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affirmative defense is redundant and incorrectly characterized.

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Main Hurdman, 655 F. Supp. at 262 (an affirmative defense deals

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only with facts extraneous to a plaintiff‟s prima facie case).

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As an element of that claim, Plaintiff alleges that

Defendants deny this allegation,
Answer ¶ 15.

Plaintiff, however, does not indicate how it is prejudiced by

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the presence of this defense.

Ultimately, the issue remains part

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of the litigation as part of Plaintiff‟s prima facie case even if
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the motion is granted.

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demonstrate such prejudice, courts frequently deny motions to

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strike even though the offending matter literally was within one or

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more of the categories set forth in Rule 12(f).” N.Y. City

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Employees' Ret. Sys. v. Berry, 667 F.Supp.2d 1121, 1128 (N.D. Cal.

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2009) (internal quotations omitted).

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motion to strike this defense is DENIED.

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3.

“Where the moving party cannot adequately

Accordingly, Plaintiff‟s

Failure to Join an Indispensable Party

Plaintiff moves to strike this affirmative defense on the

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grounds that Comcast is not a necessary party because it was not

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Plaintiff‟s sublicensee.

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it should be stricken as a matter of law.

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respond that the defense is sufficient because “[i]f the

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relationship between Plaintiff and Comcast is such that Comcast may

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grant licenses for the display of the program, Defendants [sic]

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defense of Comcast being an indispensable party may be successful.”

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Opp., at 3.

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by filing a third party complaint on July 14, 2011 (Doc. #13).

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Comcast answered the third party complaint on October 3, 2011 (Doc.

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#23).

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MTS, at 8-9.

Plaintiff also argues that
MTS, at 9.

Defendants

Ostensibly to that end, Defendants impleaded Comcast

Comcast‟s addition to this suit means that Plaintiff‟s suit is

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not affected by any burden involved with joining Comcast, as

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Defendants already took that step.

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requisite prejudice stemming from this affirmative defense in light

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of Comcast‟s recent joinder, and motions to strike are disfavored.

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As a result, the Court DENIES the motion to strike this affirmative

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defense.

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4.

Equitable Estoppel
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Plaintiff cannot show the

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Finally, Defendants included the seventh affirmative defense

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of Equitable Estoppel in their Answer.

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Plaintiff “voluntarily provided Defendant [sic] with access to the

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Plaintiff‟s Program, with [the] knowledge . . . and the intention

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that Defendant [sic] act upon access to the Program and indeed

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display and broadcast the Program at Defendant‟s [sic] place of

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business.”

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ignorant that the license provided by Comcast did not permit them

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to display the Program, as they relied on Plaintiff‟s

Answer, at 6-7.

Defendants allege that

Defendants also allege that they were

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representation.

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not a sublicensee, and that even if it was, mistake as to the scope

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of the license granted to Defendants is no defense.

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Answer, at 6.

Plaintiff argues that Comcast is

MTS, at 9.

Equitable estoppel is a defense to copyright infringement in

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the Ninth Circuit.

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App'x 555 (9th Cir. 2008).

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this context are: 1) the copyright holder knew that the infringer

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was going to do the acts later claimed as infringing; 2) the

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holder, through conduct or words, supported the action; and 3) the

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infringer detrimentally relied on the holder‟s representations.

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See id. at 556-57.

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Kramer v. From The Heart Prods., Inc., 300 F.
The elements of equitable estoppel in

While the Court declines to decide at this time whether or not

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the Twombly pleading standard applies to affirmative defenses, for

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the purposes of this motion, if an affirmative defense meets

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“Twombly‟s heightened pleading standard[,]” it meets the lesser

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pre-Twombly standard as well.

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F.Supp.2d 1167, 1172 (N.D. Cal. 2010).

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standard, a party needs to plead “enough facts to state a claim to

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relief that is plausible on its face.”

Barnes v. AT&T Pension Benefit, 718

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To meet the Twombly

Twombly, 550 U.S. at 570.

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The Court does not agree with Plaintiff‟s characterization

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that Defendants‟ seek to raise ignorance of the law as a defense.

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Rather than pleading ignorance as an excuse, the Court finds that

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Defendants are alleging that Plaintiff, through its actions,

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represented that it would not enforce its copyright against

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Defendants.

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Plaintiff knew they were going to broadcast the Program and that it

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provided the license Defendants intended to use to broadcast the

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program.

Id.

Answer, at 6.

Further, Defendants allege that

Defendants further allege that they detrimentally

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relied on Plaintiff‟s decision to provide access to the program,

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knowing that Defendants intended to broadcast it.

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Id., at 6-7.

Here, Defendants adequately pleaded all of the elements of an

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equitable estoppel defense with sufficient particularity to make

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the allegations “plausible on [their] face.”

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570.

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is not currently before the Court.

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1149, 1165 (C.D. Cal. 1995) (granting a motion to strike can be

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precluded by outstanding questions of fact).

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Defendants successfully pleaded an affirmative defense, which if

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successful will limit their liability even if the facts alleged in

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the Complaint are true.

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For these reasons, Plaintiff‟s motion to strike this defense is

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DENIED.

Twombly, 550 U.S. at

That the allegations may be baseless or factually incorrect
S.E.C. v. Sands, 902 F. Supp.

At this stage,

See Main Hurdman, 655 F. Supp. at 262.

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III. ORDER

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After carefully considering the papers submitted in this

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matter, it is hereby ordered that Defendants‟ Motion to Dismiss is

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GRANTED in part and DENIED in part as follows:
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1.

Plaintiff‟s unopposed motion to strike Defendants‟

affirmative defenses 1-4 is GRANTED;
2.

Plaintiff‟s motion to strike Defendants‟ affirmative

defenses 5-7 is DENIED.
IT IS SO ORDERED.
Dated: October 24, 2011

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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