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

Filing 24

ORDER signed by Judge Garland E. Burrell, Jr. on 05/25/12 ORDERING that plaintiff's 18 Motion to Strike is GRANTED IN PART and DENIED IN PART: defendant's first, second, third,fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelft h, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth affirmative defenses are STRICKEN. Defendant is granted 14 days to file an amended answer addressing the deficiencies in any stricken affirmative defense. (Benson, A.)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE EASTERN DISTRICT OF CALIFORNIA

7
8

J & J SPORTS PRODUCTIONS, INC.,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,

9
v.

10

12

HUMBERTO LEON SANCHEZ, JR.,
INDIVIDUALLY and d/b/a DISCOTECA
SANCHEZ,

13

Defendant.
________________________________

11

2:11-cv-02440-GEB-CKD
ORDER*

14
15

Plaintiff seeks an order striking each of Defendant’s nineteen

16

affirmative defenses under Federal Rule of Civil Procedure (“Rule”)

17

12(f). Defendant did not file an opposition brief.
I.

18

LEGAL STANDARD

“Rule 12(f) provides in pertinent part that the Court may

19
20

order

stricken

from

any

pleading

any

insufficient

defense

or

any

21

redundant, immaterial, impertinent, or scandalous matter. Motions to

22

strike are disfavored and infrequently granted.” Bassett v. Ruggles, No.

23

CV-F-09-528-OWW-SMS, 2009 WL 2982895, at *24 (E.D. Cal. Feb. 17, 2009)

24

(internal quotation marks omitted). “[T]he function of a 12(f) motion to

25

strike is to avoid the expenditure of time and money that must arise

26

from litigating spurious issues by dispensing with those issues prior to

27
28

*

argument.

This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
1

1

trial . . . .” Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885

2

(9th Cir. 1983). “Immaterial matter is that which has no essential or

3

important relationship to the claim for relief or the defenses being

4

pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),

5

rev'd on other grounds, 510 U.S. 517 (1994) (internal quotation marks

6

omitted).

7

pertain,

8

(internal citation and quotation marks omitted).

“Impertinent
and

are

not

matter

consists

necessary,

to

of

the

statements

issues

in

that

do

not

question.”

Id.

9

“The procedural sufficiency of a pleaded claim or defense in

10

federal court is governed by the federal rules, even though the defense

11

relied on may be a state defense.” Wyshak v. City Nat’l Bank, 607 F.2d

12

824, 827 (9th Cir. 1979). Rule 8(c) “governs the pleading of an

13

affirmative defense.” J&J Sports Prods., Inc. v. Gidha, No. CIV-S-10-

14

2509, 2012 WL 537494, at *2 (E.D. Cal. Feb. 17, 2012).

15

It

is

unclear

whether

the

heightened

pleading

standard

16

enumerated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

17

Ashcroft v. Iqbal, 556 U.S. 662 (2009), governs affirmative defenses:

18

“the Ninth Circuit has yet to apply Twombly and Iqbal to affirmative

19

defenses, and to date, no circuit court has issued a decision regarding

20

the applicability of the heightened pleading standard to affirmative

21

defenses.” J&J Sports Prods., Inc., 2012 WL 537494, at *2.

22

Because of what is at issue in this motion, however, whether

23

the heightened pleading standard applies need not be resolved since even

24

if the lesser pleading standard applies, the motion will be granted and

25

denied in part for the reasons stated below. Under the lesser pleading

26

standard, “[t]he key to determining the sufficiency of pleading an

27

affirmative defense is whether it gives plaintiff fair notice of the

28

defense.” Wyshak, 607 F.2d at 827.
2

1

II. DISCUSSION

2

i.

3

Plaintiff

First, Second, and Third Affirmative Defenses
argues

Defendant’s

first,

second,

and

third

4

affirmative defenses, which allege that Plaintiff’s first, second, and

5

fourth claims fail to state a claim, should be stricken since “[f]ailure

6

to state a claim is an assertion of a defect in Plaintiff’s prima facie

7

case,

8

quotation marks omitted).)

not

an

affirmative

defense.”

(Pl.’s

Mot.

5:27-28

(internal

9

“[F]ailure to state a claim is not a proper affirmative

10

defense but, rather, asserts a defect in the plaintiff’s prima facie

11

case.” G&G Closed Circuit Events, LLC v. Nguyen, No. 5:10-CV-05718, 2011

12

WL 6293922, at *2 (N.D. Cal. Dec. 15, 2011); see also J&J Sports Prods.,

13

Inc., 2012 WL 537494, at *3 (“[D]efendants’ first affirmative defense[,

14

failure to state a claim,] challenges plaintiff’s prima facie case and

15

therefore

16

Therefore, Plaintiff’s motion to strike Defendant’s first, second, and

17

third affirmative defenses is GRANTED.

is

not

properly

raised

as

an

affirmative

defense.”).

18

ii.

19

Plaintiff argues Defendant’s fourth affirmative defense, which

20

alleges that the complaint is uncertain, vague, ambiguous, improper, and

21

unintelligible, should be stricken since “[t]his is not an affirmative

22

defense.” (Pl.’s Mot. 6:10.)

Fourth Affirmative Defense

23

“[T]he allegation . . . that the Complaint is [uncertain,

24

vague, ambiguous, improper, and unintelligible] is not an affirmative

25

defense; rather, any lack of clarity in the Complaint should have been

26

addressed through a motion [under the applicable Rule].” G&G Closed

27

Circuit Events, LLC, 2010 WL 3749284, at *5. Therefore, Plaintiff’s

28

motion to strike Defendant’s fourth affirmative defense is GRANTED.
3

1

iii. Fifth Affirmative Defense

2

Plaintiff also argues Defendant’s fifth affirmative defense,

3

which

4

“procedurally deficient[ and] fails as a matter of law.” (Pl.’s Mot.

5

6:19-20.) Specifically, Plaintiff argues “Defendant’s conduct is not

6

only fairly traceable to the injury, it is specifically traceable to the

7

injury.” Id. 6:26-27 (internal quotation marks and emphasis omitted).

alleges

lack

of

standing,

should

be

stricken

since

it

is

8

However, “federal courts are very reluctant to determine . . .

9

substantial issues of law on a motion to strike; these questions quite

10

properly are viewed as best determined only after further development

11

. . . .” Hernandez v. Balakian, (quoting Wright & Miller, Federal

12

Practice and Procedure: Civil 3d § 1381)). Since this portion of

13

Defendant’s motion concerns substantial issues of law, Plaintiff’s

14

motion to strike Defendant’s fifth affirmative defense is DENIED.

15

iv.

16

Plaintiff argues Defendant’s sixth, seventh, eighth, and ninth

17

affirmative defenses, which each allege defenses based on negligence

18

principles, should be stricken since “Plaintiff has not alleged any

19

negligence claims and the arguments raised in these defenses, even if

20

procedurally

21

stricken because there is no set of facts under which these defenses may

22

be applicable.” (Pl.’s Mot. 7:5-7.)

23

Sixth, Seventh, Eighth, and Ninth Affirmative Defenses

valid,

are

immaterial

and

impertinent

and

should

be

Since “it is clear that the matter to be stricken could have

24

no

25

Plaintiff’s motion to strike Defendant’s sixth, seventh, eighth, and

26

ninth affirmative defenses is GRANTED. J&J Sports Prods., Inc. v. Gidha,

27

No. CIV-S-10-2509, 2012 WL 537494, at *1 (E.D. Cal. Feb. 17, 2012).

28

///

possible

bearing

on

the

subject

4

matter

of

the

litigation,”

1

v.

2

Plaintiff also argues Defendant’s tenth affirmative defense,

3

which alleges failure to mitigate damages, should be stricken since

4

“this doctrine has no legal significance in this case[.]” (Pl.’s Mot.

5

8:3-4.)

Tenth Affirmative Defense

6

“Typically, the rule of mitigation of damages comes into play

7

when the event producing injury or damage has already occurred and it

8

then has become the obligation of the injured or damaged party to avoid

9

continuing or enhanced damages through reasonable efforts.” Valle de Oro

10

Bank v. Gamboa, 26 Cal. App. 4th 1686, 1691 (1994). “The complaint,

11

however, alleges no continuing harm.” Joe Hand Promotions, Inc. v.

12

Estradda, No 1:10-cv-02165-OWW-SKO, 2011 WL 2413257, at *5 (E.D. Cal.

13

June 8, 2011). Since “[t]his defense . . .

14

of action asserted in the complaint[,]” Plaintiff’s motion to strike

15

Defendant’s tenth affirmative defense is GRANTED. Joe Hand Promotions,

16

Inc. v. Garcia, No. 1:11cv02030, 2012 WL 1413940, at *4 (E.D. Cal. Apr.

17

23, 2012) (addressing identical claims to this action).

18
19

vi.

is irrelevant to the causes

Eleventh, Twelfth, Thirteenth, and Fourteenth Affirmative
Defenses

20

Plaintiff argues Defendant’s unclean hands, laches, waiver,

21

and judicial and equitable estoppel affirmative defenses should be

22

stricken since these “defenses are insufficient in that they do not

23

provide fair notice.” (Pl.’s Mot. 8:15.)

24

Defendant’s

“unclean

hands

and

laches

defenses

are

25

insufficient because Defendant does not: (1) identify any conduct by

26

Plaintiff that amounted to ‘unclean hands’ and (2) articulate how

27

Plaintiff engaged in unreasonable delay that resulted in prejudice to

28

Defendant.” J & J Sports Prods., Inc. v. Romero, No. 1:11-cv-1880, 2012
5

1

WL 1435004, at *3 (E.D. Cal. Apr. 25, 2012); see also J&J Sports Prods,

2

Inc., 2012 WL 537494, at *3 (striking waiver, estoppel, and unclean

3

hands affirmative defenses for failure to give fair notice).

4

Further, the waiver and estoppel affirmative defenses are

5

“insufficient because they do not articulate how these doctrines apply

6

to the claims set forth in the Complaint. Defendant simply refers to the

7

equitable doctrine of waiver and estoppel, and does not provide any

8

supporting facts, making it impossible for Plaintiff to ascertain the

9

basis for these affirmative defenses.” J & J Sports Prods., Inc. v.

10

Nguyen, No C 11-05433, 2012 WL 1030067, at *2 (N.D. Cal. Mar. 22, 2012);

11

J & J Sports Prod., Inc., 2012 WL 1435004, at *3.

12
13

Therefore, Plaintiff’s motion to strike Defendant’s eleventh,
twelfth, thirteenth, and fourteenth affirmative defenses is GRANTED.

14

vii. Fifteenth Affirmative Defense

15

Plaintiff

also

argues

Defendant’s

fifteenth

affirmative

16

defense, which alleges that Plaintiff’s claims are barred by assumption

17

of the risk, should be stricken since it “is at a loss as to how

18

broadcasting its Program was a dangerous behavior that assumed the risk

19

that the Program would be unlawfully intercepted such that Defendant may

20

be absolved of liability.” (Pl.’s Mot. 10:9 n.2.)

21

“The ‘assumption of the risk’ doctrine provides an exception

22

to the general duty of care rule when a plaintiff is injured while

23

voluntarily participating in a risky activity.” Rosencrans v. Dover

24

Images, LTD., 192 Cal. App. 4th 1072, 1082 (2011); see also Connelly v.

25

Mammoth Mountain Ski Area, 39 Cal. App. 4th 8, 11 (1995) (“Primary

26

assumption of risk arises where a plaintiff voluntarily participates in

27

an activity or sport involving certain inherent risks[.]”). However,

28

neither

Plaintiff

nor

Defendant

has
6

alleged

that

Plaintiff

was

1

voluntarily participating in a risky activity.

2

Since “it is clear that the matter to be stricken could have

3

no

4

Plaintiff’s motion to strike Defendant’s fifteenth affirmative defense

5

is GRANTED. J&J Sports Prods., Inc. v. Gidha, No. CIV-S-10-2509, 2012 WL

6

537494, at *1 (E.D. Cal. Feb. 17, 2012).

possible

bearing

on

the

subject

matter

7

Plaintiff

the

litigation,”

viii. Sixteenth Affirmative Defense

8

of

also

argues

Defendant’s

sixteenth

affirmative

9

defense, which alleges that Plaintiff’s claims are barred by consent or

10

implied consent, should be stricken since “it does not provide fair

11

notice.” (Pl.’s Mot. 10:14.)

12

This defense is “applicable in negligence and intentional tort

13

actions.” Scott v. Fed. Bond & Collection Serv., Inc., No. 10-CV-02825-

14

LHK, 2011 WL 176846, at *6 (N.D. Cal. Jan 19, 2011). However, under

15

California

16

defendant’s act, and prevents the existence of a tort.” Tavernier v.

17

Maes, 242 Cal. App. 2d 532, 552 (1966); see also Judicial Council of

18

California, Judicial Council of California Civil Jury Instructions,

19

§ 2100 (2011) (enumerating lack of consent as an element of conversion).

20

Since “allegations that negate an element of [Plaintiff’s]

21

claims are not affirmative defenses[,]” Plaintiff’s motion to strike

22

Defendant’s sixteenth affirmative defense is GRANTED. J&J Sports Prods.,

23

Inc. v. Franco, No. CV F 10-1704 LJO DLB, 2011 WL 794826, *3 (E.D. Cal.

24

Mar. 1, 2011).

law,

“consent

negatives

the

wrongful

element

of

the

25

ix.

26

Plaintiff argues Defendant’s seventeenth affirmative defense,

27

which alleges that Plaintiff’s claims are barred by the doctrines of

28

collateral estoppel and res judicata, is inapplicable and should be

Seventeenth Affirmative Defense

7

1

stricken since “each defense is contingent upon some prior litigation

2

between the parties arising out of the broadcast of the Program.” (Pl.’s

3

Mot. 11:1-3.)

4

“Under 28 U.S.C. § 1738, Federal courts are required to give

5

full

6

Plaintiff nor Defendant has alleged that any prior judicial proceeding

7

has occurred with respect to these claims which would carry preclusive

8

effect. Therefore, [this defense is] insufficient as a matter of law[,]”

9

and Plaintiff’s motion to strike Defendant’s seventeenth affirmative

10

defense is GRANTED. Ganley v. Cnty. of San Mateo, No. C06-3923, 2007 WL

11

902551, at *5 (N.D. Cal. Mar. 22, 2007).

faith

and

credit

to

state

court

judgments.

However,

neither

12

x.

13

Plaintiff argues Defendant’s eighteenth affirmative defense

14

should be stricken since it “is not a defense at all; it is an attempt

15

by Defendant to utilize the pleading of affirmative defenses as an

16

opportunity to cast aspersions on Plaintiff and its counsel, and to make

17

a policy statement regarding the underlying litigation.” (Pl.’s Mot.

18

11:11-13.)

19

follows:

20
21
22
23
24
25
26
27
28

Eighteenth Affirmative Defense

Defendant’s

eighteenth

affirmative

defense

alleges

Without waiver of any of the denials and
allegations
of
this
Answer,
Plaintiff[
is]
attempting to capitalize on an inadvertent social
use of their product, essentially by mistake, and
to transform it, in true “Gotcha” fashion, into
what is alleged to seem like a heinous breach of
the
copyright
laws,
subject
to
“dragnet”
litigation. Defendant[] did not understand the
concept of “closed circuit programming” and
believed they were arranging for a Pay Per View
Boxing Match, albeit imperfectly, for a private
party among friends at Mr. Sanchez[’s] private
apartment which was physically connected to his
business premises, which should have cost them a
maximum of $100. The evidence will demonstrate that
this was, if anything and at the very most, a noncommercial, inadvertent social use of this product,
which occurred at a private party, absolutely
8

as

1

without commercial gain, or admission charged,
essentially by mistake. Since realizing their
mistake, Defendant[], since being served with this
First Amended Complaint, ha[s] been ready and
willing at all material times, and ha[s] repeatedly
so expressed [his] willingness, to pay the actual
charge for the programming, which [he] believe[s]
now to be in the neighborhood of $1,500 to $2,000
according to Plaintiff’s listed prices found on a
recent Google internet search, but, instead,
Plaintiff[]
seem[s]
to
prefer
to
make
the
proverbial “Federal Case,” out [of] this situation
and to even further needlessly overload our
judicial system because Defendant[] ha[s] no
intention whatsoever of repeating [his] mistake.

2
3
4
5
6
7
8
9

(Answer ¶ 56.)

10

“The fair notice pleading requirement is met if the defendant

11

sufficiently articulated the defense so that the plaintiff was not a

12

victim of unfair surprise.” J&J Sports Prods., Inc. v. Romero, No. 1:11-

13

cv-1880-AWI-BAM, 2012 WL 1435004, at *2 (E.D. Cal. Apr. 25, 2012). Since

14

it is unclear which, if any, legal theory provides the basis for this

15

affirmative

16

affirmative defense. See J&J Sports Prods., Inc. v. Gidha, No. CIV S-10-

17

2509

18

(“Plaintiff’s argument that this defense is confusing and internally

19

inconsistent is well-taken. Defendants have failed to give plaintiff

20

fair notice of the defense, and therefore, defendants’ tenth affirmative

21

defense must be stricken.”). Therefore, Plaintiff’s motion to strike

22

Defendant’s eighteenth affirmative defense is GRANTED.

defense,

KJM-KJN,

2012

Defendant

WL

537494,

fails

at

to

*4

give

(E.D.

fair

Cal.

notice

Feb.

of

17,

this

2012)

23

xi.

24

Plaintiff argues Defendant’s nineteenth affirmative defense

25

should be stricken since “Defendant may not reserve a right to amend his

26

pleadings and thereby circumvent Rule 15.” (Pl.’s Mot. 13:1 (internal

27

quotation marks omitted).)

28

Nineteenth Affirmative Defense

“An attempt to reserve affirmative defenses for a future date
9

1

is not a proper affirmative defense in itself. Instead, if at some later

2

date [Defendant] seeks to add affirmative defenses, he must comply with

3

[the applicable amendment rule].” Solis v. Zenith Capital, LLC, No. 08-

4

cv-4854, 2009 WL 1324051, at *7 (N.D. Cal. May 8, 2009). Therefore,

5

Plaintiff’s motion to strike Defendant’s nineteenth affirmative defense

6

is GRANTED.

7

III. CONCLUSION

8
9

For the stated reasons, Defendant’s first, second, third,
fourth,

sixth,

seventh,

eighth,

ninth,

tenth,

eleventh,

twelfth,

10

thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth,

11

and nineteenth affirmative defenses are stricken.

12

Defendant is granted fourteen (14) days from the date on which

13

this

14

deficiencies in any stricken affirmative defense.

15

Dated:

order

is

filed

to

file

an

amended

answer

addressing

May 25, 2012

16
17
18

GARLAND E. BURRELL, JR.
United States District Judge

19
20
21
22
23
24
25
26
27
28
10

the