J & J Sports Productions, Inc. v. Maravilla

Filing 29

ORDER signed by Senior Judge William B. Shubb on 5/21/2013 re 11 Plaintiff's Motion to Strike : Plaintiff's motion to strike be, and the same hereby is, GRANTED at to defendant's first, second, third, fourth, and eight defenses and DENIED as to defendant's fifth, sixth, and seventh defenses. Defendant has fourteen days from the date of this Order to file an amended answer, if she can do so consistent with this Order. (Kirksey Smith, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11
12

J & J SPORTS PRODUCTIONS,
INC.,

NO. CIV. 2:12-02899 WBS EFB

13
Plaintiff,

ORDER RE: MOTION TO STRIKE
AFFIRMATIVE DEFENSES

14
v.
15
16

BLANCA E. MARAVILLA,
individually and d/b/a LAS
PALMAS MEXICAN RESTAURANT,

17
Defendant.
18

/

19
----oo0oo---20
21

Plaintiff J & J Sports Productions, Inc. brought suit

22

against defendant Blanca E. Maravilla asserting claims arising

23

from defendant’s allegedly wrongful interception of a television

24

program.

25

strike defendant’s affirmative defenses pursuant to Federal Rule

26

of Civil Procedure 12(f).

27

I.

28

Currently before the court is plaintiff’s motion to

Factual and Procedural Background
Plaintiff owns the exclusive nationwide television
1

1

distribution rights to “Good v. Evil: Miguel Angel Cotto v.

2

Antonio Margarito, WBA Super World Light Middleweight

3

Championship Fight Program (“Program”), which telecast nationwide

4

on December 3, 2011. (Compl. ¶ 14 (Docket No. 1).)

5

the alleged owner and operator of Las Palmas Mexican Restaurant

6

(“Las Palmas”) in Manteca, California.

7

Defendant is

(Id. ¶ 7.)

Plaintiff alleges that on the date of the nationwide

8

telecast of the Program, defendant, with full knowledge that the

9

Program was not to be intercepted by an unauthorized entity,

10

intercepted and displayed the Program at Las Palmas.

(Id. ¶ 17.)

11

It brings four claims for relief: (1) violation of 47 U.S.C. §

12

605; (2) violation of 47 U.S.C. § 553; (3) conversion; and (4)

13

violation of California Business and Professions Code section

14

17200.

15

affirmative defenses.

16

now moves to strike all of defendant’s affirmative defenses.

17

(Docket No. 11.)

18

II.

Defendant answered the Complaint, alleging eight
(Answer at 5-6 (Docket No. 8).)

Plaintiff

Motion to Strike

19

Pursuant to Rule 12(f), the court may “strike from a

20

pleading an insufficient defense or any redundant, immaterial,

21

impertinent, or scandalous matter.”

22

purpose of the rule is to avoid the costs that accompany

23

litigating spurious issues by dispensing with those issues prior

24

to trial.

25

(9th Cir. 1983).

26

disfavor and are not frequently granted.

27

pleading under attack in the light more favorable to the

28

pleader.”

Fed. R. Civ. P. 12(f).

The

Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885
“Motions to strike are generally viewed with
Courts must view the

Garcia ex rel. Marin v. Clovis Unified Sch. Dist., No.
2

1

Civ. 1:08-1924, 2009 WL 2982900, at *23 (E.D. Cal. Sept. 14,

2

2009) (citation omitted).

3

and well-founded, Rule 12(f) motions often are not granted in the

4

absence of a showing of prejudice to the moving party.”

5

Hernandez v. Balakian, No. Civ. 1:06-1383, 2007 WL 1649911, at *1

6

(E.D. Cal. June 1, 2007) (internal quotation marks and citation

7

omitted).

8
9

“[E]ven when technically appropriate

An affirmative defense is sufficiently pled when it
gives the plaintiff “fair notice” of the defense.

Wyshak v. City

10

Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979).

11

generally requires that the defendant state the nature and

12

grounds for the affirmative defense.”

13

Restaurants, LP, 280 F.R.D. 560, 564 (S.D. Cal. 2012).

14

reference to a doctrine, like a reference to statutory

15

provisions, is insufficient notice.”

16

Corp., 315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004).

17

the purpose of pleading affirmative defenses is to provide the

18

plaintiff with fair notice of the asserted defenses, leave to

19

amend should be freely granted in the absence of prejudice to the

20

opposing party.

21

“Fair notice

Kohler v. Islands
“A

Qarbon.com Inc. v. eHelp
Given that

Wyshak, 607 F.2d at 826.

Plaintiff moves to strike the following affirmative

22

defenses: (1) denial of liability and responsbility for damages;

23

(2) statutes of limitations and statutes of repose; (3) estoppel;

24

(4) failure to mitigate; (5) unaware acts constituted a violation

25

of 47 U.S.C. §§ 553 and 605; (6) denial of broadcast, did not

26

advertise program, and if did broadcast, was for private viewing;

27

(7) did not violate 47 U.S.C. § 553(a)(1) willfully or for

28

purposes of commercial advantage or private financial gain; and
3

1

(8) reservation of other defenses.

2

At oral argument, counsel for defendant stated that

3

defendant does not oppose the court striking defenses 1, 2, 4,

4

and 8.

5

leave to amend.

6

The court will therefore strike these defenses without

Defendant’s third affirmative defense fails to provide

7

fair notice.

Defendant simply avers that “[t]he claims asserted

8

in the Complaint may be barred by estoppel.”

9

Simply referencing a doctrine is insufficient notice.

(Answer ¶ 3.)
Qarbon.com

10

Inc., 315 F. Supp. 2d at 1049 (striking bare affirmative defense

11

of “estoppel”).

12

of estoppel she was asserting, such as judicial estoppel,

13

collateral estoppel, or equitable estoppel.

14

argument, counsel for defendant suggested that this defense could

15

be amended to provide notice.

16

plaintiff’s third affirmative defense with leave to amend.

Moreover, defendant did not indicate which kind

See id.

At oral

Thus, the court will strike

17

Defendant’s fifth affirmative defense is that she “was

18

not aware and had no reason to believe that her acts constituted

19

a violation of section 47 [U.S.C.] section 553 and 47 [U.S.C.]

20

section 605.”

21

defense is that she “did not at anytime televise an unauthorized

22

broadcast of the Program at her place of business[,] [n]or did

23

[she] advertise the Program or profit from the Program.

24

did broadcast the Program, it was for her private viewing.”

25

(Id.)

26

not violate subsection (a)(1) of 47 [U.S.C.] section 553

27

willfully, nor did [she] violate the above section for purposes

28

of commercial advantage or private financial gain.”

(Answer at 6.)

Defendant’s sixth affirmative

If [she]

Defendant’s seventh affirmative defense is that she “did

4

(Id.)

1

Defendant argues that recent cases support the

2

proposition that a defendant’s notice, or lack thereof, “are

3

legitimate issues to raise” for alleged violations of §§ 553 and

4

605.

5

defendant cites for this proposition do discuss a “good faith”

6

defense.

7

Civ. 1:11-01875, 2012 WL 6088300 (E.D. Cal. Dec. 6, 2012) (Beck,

8

M.J.), in determining whether there was good cause to set aside a

9

default judgment under Rule 55(c), stated that good faith was

(Opp’n at 3:19-20 (Docket No. 14).)

The cases that

The court in J & J Sports Prods., Inc. v. Benitez, No.

10

possibly a meritorious defense.

Benitez, 2012 WL 6088300, at *5.

11

The other case cited by defendant, however, specifically notes

12

that good faith is not a defense to § 553.

13

Productions v. Coyne, 857 F. Supp. 2d 909, 917 n. 8 (N.D. Cal.

14

2012) (“It appears that Double Play acted in good faith when it

15

purchased the Program from Comcast by contacting Comcast and

16

asking how it could go about obtaining the Program.

17

good faith does not affect Double Play’s liability under § 553.

18

However, the Court may take Double Play’s good faith into account

19

when it sets damages.”)

See J & J Sports

But that

20

The court will not strike defendant’s fifth, sixth, and

21

seventh affirmative defenses because even if they do not apply to

22

escape liability altogether, they may be relevant to determining

23

plaintiff’s damages and thus are not “redundant, immaterial,

24

impertinent, or scandalous matter[s].”

25

This is not to say that a defendant must plead as affirmative

26

defenses all the various factors that may be considered in

27

reducing damages order to raise them later, only that she is not

28

foreclosed from doing so here.
5

Fed. R. Civ. P. 12(f).

1

IT IS THEREFORE ORDERED that plaintiff’s motion to

2

strike be, and the same hereby is, GRANTED at to defendant’s

3

first, second, third, fourth, and eight defenses and DENIED as to

4

defendant’s fifth, sixth, and seventh defenses.

5

fourteen days from the date of this Order to file an amended

6

answer, if she can do so consistent with this Order.

7

DATED:

May 21, 2013

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

Defendant has