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

Filing 28

ORDER granting in part and denying in part 23 Motion to Strike 23 MOTION to Strike Defendants' Amended Answer and Affirmative Defenses; Memorandum of Points and Authorities (sclc2, COURT STAFF) (Filed on 1/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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J&J SPORTS PRODUCTIONS, INC.,

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Plaintiff,

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United States District Court

For the Northern District of California

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v.
MELINDA J. VIZCARRA and RICARDO
VIZCARRA, individually and d/b/a
KA LINDA RESTAURANT,
Defendants.

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Case No. 11-1151 SC
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION TO STRIKE

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I.

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INTRODUCTION
This matter comes before the Court on the Motion to Strike

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Defendants' Amended Answer and Affirmative Defenses brought by

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Plaintiff J & J Sports Productions, Inc. ("Plaintiff") against

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Defendants Melinda J. Vizcarra and Ricardo Vizcarra, individually

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and d/b/a Ka Linda Restaurant (collectively, "Defendants").

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No. 23 ("MTS").

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finds the Motion suitable for determination without oral argument.

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For the reasons set forth below, the Court GRANTS Plaintiff's

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Motion in part and DENIES it in part with respect to the Amended

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Answer, and GRANTS Plaintiff's Motion with respect to both

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affirmative defenses.

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///

ECF

Pursuant to Civil Local Rule 7-1(b), the Court

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II.

BACKGROUND
On March 10, 2011, Plaintiff filed a Complaint alleging that

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it owned exclusive nationwide commercial distribution (closed-

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circuit) rights for a boxing match televised in 2010 ("Program")

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and that Defendants had unlawfully exhibited the Program at

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Defendants' restaurant.

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Defendants, proceeding pro se, timely filed an Answer in which they

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asserted five affirmative defenses.

ECF No. 12 ("Answer").

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Plaintiff moved to strike all five.

ECF No. 13 ("First MTS").

United States District Court

For the Northern District of California

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See ECF No. 1 ("Compl.") ¶¶ 10-13.

After the First MTS had been fully briefed (ECF Nos. 14 & 16),

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but before the Court ruled on it, Defendants retained counsel.

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ECF No. 18.

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granting Plaintiff's motion.

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struck from the initial Answer all five affirmative defenses but

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gave Defendants leave to amend two of them, laches and unclean

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hands.

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See

A few days later, this Court ruled on the First MTS,

Order at 7.

ECF No. 21 ("Order").

The Court

The Order stated:

If Defendants wish to amend these two affirmative
defenses, they shall file an Amended Answer within thirty
(30) days of this Order. If they have not filed an
Amended Answer setting forth particular facts in support
of their laches and unclean hands defenses within thirty
(30) days, those defenses will be deemed STRICKEN WITH
PREJUDICE.

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Id.

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Defendants, now appearing through counsel, filed an Amended

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Answer on September 30, 2011, three days after the Court's Order.

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ECF No. 22 ("Am. Answer").

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initial Answer in several respects.

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laches and unclean hands defenses, Defendants, through counsel,

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entirely rewrote the Answer to include a demand for a jury trial,

The Amended Answer differed from the

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In addition to modifying their

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Am. Ans. at 3, and a series of denials, Am. Ans. at 1.

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denials consisted of: two general denials; assertions of

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insufficient information to respond; specific denials; and a

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statement denying everything "[e]xcept as expressly admitted

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herein."

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reference to express admissions, contained none.1

Am. Ans. at 1, ¶¶ 1-4.

These

The amended pleading, despite its

On October 14, 2011, Plaintiff filed the instant Motion to

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Strike Defendants' entire Amended Answer, including the laches and

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unclean hands defenses, pursuant to Federal Rule of Civil Procedure

United States District Court

For the Northern District of California

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12(f).

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III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) provides that a court

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may, on its own or on a motion, "strike from a pleading an

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insufficient defense or any redundant, immaterial, impertinent, or

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scandalous matter."
A defense may be insufficient as a matter of pleading or as a

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matter of law.

Sec. People, Inc. v. Classic Woodworking, LLC, No.

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C-04-3133 MMC, 2005 WL 645592, at *2 (N.D. Cal., Mar. 4, 2005).

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defense is insufficient as a matter of pleading if it fails to

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"give[] plaintiff fair notice of the defense" and the grounds upon

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which it rests.

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Cir. 2010) (quoting Wyshak v. City Nat'l Bank, 607 F.2d 824, 827

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(9th Cir. 1979)).

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pleading, a district court should give the pleader leave to amend

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///

A

Simmons v. Navajo Cty., 609 F.3d 1011, 1023 (9th

If a defense is insufficient as a matter of

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The original Answer admitted that Defendants "are individuals and
a corporation doing business as Ka Linda Restaurant . . . ."
Compare Answer ¶ 2 with Am. Answer ¶¶ 1-4.
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unless doing so would result in prejudice to the other party.

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Wyshak, 607 F.2d at 826.

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A defense is insufficient as a matter of law if it "would not,

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under the facts alleged, constitute a valid defense to the action .

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. . ."

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legally insufficient, it "can and should be" stricken.

Sec. People, 2005 WL 645592, at *3.

If a defense is
Id.

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IV.

DISCUSSION

United States District Court

Plaintiff argues that Defendants' Amended Answer must be

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For the Northern District of California

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struck because (1) it is not properly before this Court and (2) it

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is defective under the Federal Rules of Civil Procedure

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(hereinafter, "the Rules" or, individually, "Rule").

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also argues that both of Defendants' affirmative defenses continue

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to be insufficient and therefore must be struck.

Plaintiff

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A.

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Plaintiff moves to strike Defendants' Amended Answer on two

Amended Answer

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grounds.

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properly before the Court because Defendants failed to comply with

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Rule 15's provision that parties may amend their pleadings "only

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with the opposing party's written consent or the court's leave."

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MTS at 4.

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Amended Answer contains both general and specific denials of the

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Complaint's allegations it is incurably defective and must be

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struck in its entirety.

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First, Plaintiff argues that the Amended Answer is not

Second, Plaintiff argues, in essence, that because the

MTS at 4-6.

Defendants do not supply a coherent response.

Unhelpfully,

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they discuss Rule 8(d)'s authorization of inconsistent legal claims

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and defenses.

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Reply at 3-4, Rule 8(d) is simply inapplicable here.

See Opp'n at 3.

However, as Plaintiff observes,

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Rule 8(d)

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addresses inconsistent "claims and defenses" of law, but at issue

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in Plaintiff's motion is the inconsistency of Defendants'

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admissions and denials of fact.

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an argument Plaintiff has not made.

Defendants, in short, respond to

Nevertheless, Defendants being wrong does not make Plaintiff

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Amended Answer is not properly before this Court.

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permits a party to amend a pleading once as a matter of course

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within certain time limits; Rule 15(a)(2) permits other amendments

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United States District Court

right.

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For the Northern District of California

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The Court is not persuaded by Plaintiff's argument that the

"with the opposing party's written consent or the court's leave."

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Plaintiff acknowledges that the Court gave Defendants leave to

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amend their Answer, but argues that Defendants exceeded the scope

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of the Court's leave by amending portions of the pleading other

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than those relating to affirmative defenses.

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reasons that Defendants must have been amending as a matter of

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course, but outside the time limits imposed by Rule 15, and that

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their entire pleading is therefore untimely and must be struck.

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Id.

Rule 15(a)(1)

MTS at 4.

Plaintiff

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However, the Court's previous Order may fairly be read to

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permit amendment of what Plaintiff calls the "Answer proper."2

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That Order did not expressly limit Defendants to amending solely

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those paragraphs containing Defendants' affirmative defenses.

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Order at 7 ("If Defendants wish to amend these two affirmative

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defenses, they shall file an Amended Answer within thirty (30) days

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of this Order.").

See

Plaintiff cites no authority that would require

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Plaintiff defines the "Answer proper" as "that portion of the
pleading that responds to the numbered paragraphs of Plaintiff's
Complaint," and distinguishes it from the portion of the pleading
containing Defendants' affirmative defenses. MTS at 3-4.
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the Court to impose such a limit, and the Court is not inclined to

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do so now.

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Plaintiff's second argument for dismissing the Amended Answer

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unfolds in two parts: first, that Defendants have impermissibly

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pled a general denial alongside specific denials, and, second, that

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this error of form entitles Plaintiff to have Defendants' entire

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Amended Answer stricken.

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is true, the second is false.

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MTS at 4-6.

While the first proposition

Rule 8(b)(3) clearly expresses the intent that parties who

United States District Court

For the Northern District of California

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wish to deny the allegations of a complaint will choose, as a

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matter of form, between a general denial, which includes denial of

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the alleged grounds for jurisdiction, and specific denials.

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"General denials are technically permissible in federal actions,"

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but they are "rarely proper because there is almost always

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something in the complaint that, in good faith, should be admitted:

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e.g., status of parties, federal jurisdiction, etc."

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Macau Commercial Offshore, Ltd. v. Reddy, 2005 WL 2562624, at *1

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(N.D. Cal. 2005).

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Pentalpha

Defendants have improperly pleaded general denials alongside

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numerous (proper) specific denials.

Nevertheless, the Court does

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not agree with Plaintiff that this is a mark of bad faith, nor,

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more pertinently, that the remedy for Defendants' error is to

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strike their entire pleading.

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to pleading which deemphasizes formal niceties in favor of actual

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notice.

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Federal Practice and Procedure § 1266 (3d ed. 1998) ("[A]s has been

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pointed out numerous times in this discussion of pleading under the

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federal rules, nomenclature and formal matters should not be

The Federal Rules embody an approach

See, e.g., 5 Charles Alan Wright & Arthur R. Miller,

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determinative and the intention of the pleader should be given

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effect so that a resolution of the merits can be achieved.").

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Defendants have made their intentions plain enough to put Plaintiff

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on notice of the basis of their defenses, and it would be "wasteful

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formality, not supported by the Federal Rules' notice pleading

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standards," to require Defendants to amend their Answer yet again.

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Khalek v. San Diego Trolley, Inc., 2007 WL 1381611, at *3 (S.D.

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Cal. 2007).

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increase the expense of unnecessarily litigating picayune issues.

The purpose of a 12(f) motion is to avoid rather than

United States District Court

For the Northern District of California

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

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

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declines to strike the entire Amended Answer.

Hence, this Court

Read in its entirety, Defendants' Amended Answer makes plain

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that Defendants admit to having ordered the Program from a third

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party but deny having shown it in their restaurant.

Defendants say

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as much in their opposition brief.

Plaintiff has

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been put on sufficient notice of what Defendants admit (that they

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own a business in Union City, subscribe to DIRECTV, and ordered the

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Program from DIRECTV) and what they deny (everything else).

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Moreover, Plaintiff has the opportunity to test Defendants' factual

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contentions through discovery.

See Opp'n at 3.

It is readily apparent from the Amended Answer, taken as a

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whole, that Defendants intended only to generally deny wrongdoing,

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not to issue a general denial of fact.

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Plaintiff's Motion to Strike the Amended Answer only with respect

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to the purported general denials in Defendants' Amended Answer and

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otherwise DENIES the motion.

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///

Therefore, the Court GRANTS

Defendants' specific denials remain.

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The Court also reminds Defendants' counsel of his Rule 11

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obligations with respect to factual contentions and admonishes him

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to observe the formal requirements of Rule 8 in any future

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pleadings before this Court.

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B.

Affirmative Defenses

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In the Amended Answer, Defendants reprise their attempts to

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plead the affirmative defenses of laches and unclean hands.

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Previously, Defendants, proceeding pro se, pled these defenses

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simply by invoking their names.

Answer ¶¶ 19, 20.

This Court

United States District Court

For the Northern District of California

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struck the defenses as insufficiently pled but gave Defendants

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leave to amend them.

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observed the lenient pleading standard applied to pro se litigants.

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Id. at 4.

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therefore reviews the Amended Answer's pleading of affirmative

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defenses under generally applicable standards.

Order at 6-7.

In doing so, the Court

Defendants are now represented by counsel.

The Court

Unfortunately, Defendants' amended Answer scarcely improves

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upon the original.

Defendants plead laches by stating that they

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subscribed to DIRECTV over five years before Plaintiff brought

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suit.

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lawsuit does not concern when or whether Defendants subscribed to

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DIRECTV, but rather whether they unlawfully intercepted and

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exhibited the Program.

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Previously, Defendants provided no facts to support their laches

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defense; now, they have provided facts, but the facts do not amount

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to laches, even when construed in the light most favorable to

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Defendants.

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is simply irrelevant and "could have no possible bearing on the

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subject of the litigation."

Am. Answer ¶ 5.

Plaintiff points out that the instant

MTS at 7; Reply at 5.

The Court agrees.

The timing of Defendants' purchase of DIRECTV service

Platte Anchor Bolt, Inc. v. IHI, Inc.,

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352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004).

Defendants' laches

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defense therefore fails as a matter of law.

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strikes Defendants' first affirmative defense with prejudice.

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Defendants are barred from further pleading the affirmative defense

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of laches.

Accordingly, the Court

Defendants' affirmative defense of unclean hands fares no

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better.

Defendants allege that they ordered the Program from a

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DIRECTV employee who "misled" them into thinking they could order

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the Program for family viewing.

Am. Answer ¶ 6.

This explains how

United States District Court

For the Northern District of California

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Defendants came to order the Program but not how Plaintiff acted

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with unclean hands.

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the program but whether they unlawfully exhibited it in their

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restaurant.

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of Plaintiff and assume that this would render Plaintiff

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responsible for DIRECTV's acts, but they do not allege how this is

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so.

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irrelevant.

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Defendants believe they have a claim against DIRECTV, then they

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must bring an action against DIRECTV.

The issue is not whether Defendants ordered

Defendants baldly assert that DIRECTV is a sublicensee

Defendants' allegations concerning DIRECTV, as above, are
As this Court explained in its previous Order, if

Order at 6.

Defendants have pled the defense of unclean hands with

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sufficient supporting facts to put Plaintiff on notice of the basis

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for the defense, but the basis is inadequate as a matter of law.

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Accordingly, the Court strikes Defendants' unclean hands defense

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with prejudice.

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affirmative defense of unclean hands.

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///

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///

Defendants are barred from further pleading the

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V.

CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES

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in part the Motion to Strike filed by Plaintiff J & J Sports

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Productions, Inc., against Defendants Melinda J. Vizcarra and

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Ricardo Vizcarra.

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denials WITH PREJUDICE.

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Court also STRIKES Defendants' affirmative defenses of laches and

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unclean hands WITH PREJUDICE.

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United States District Court

For the Northern District of California

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The Court STRIKES Defendants' putative general
Defendants' specific denials remain.

The parties shall appear for a Case Management Conference on
February 24, 2012, at 10:00 a.m. in Courtroom 1.

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IT IS SO ORDERED.

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The

Dated: January 09, 2012
UNITED STATES DISTRICT JUDGE

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