Joe Hand Promotions Inc v. Looney et al

Filing 28

ORDER by Judge Edward M. Chen Granting 16 Plaintiff's Motion to Strike Defendants' Answer in Part; and Denying 17 Defendants' Motion to Dismiss. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 12/8/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS INC.,

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For the Northern District of California

United States District Court

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No. C-11-2224 EMC

Plaintiff,
v.
KENNETH T. LOONEY, et al.,
Defendants.

ORDER GRANTING PLAINTIFF’S
MOTION TO STRIKE DEFENDANTS’
ANSWER IN PART; AND DENYING
DEFENDANTS’ MOTION TO DISMISS
(Docket Nos. 16, 17)

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Plaintiff’s unopposed motion to strike portions of Defendants’ Answer and Defendants’

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motion to dismiss came on for hearing before the Court on December 2, 2011. Docket Nos. 16, 17.

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For the reasons set forth below, the Court GRANTS Plaintiff’s motion to strike and DENIES

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Defendants’ motion to dismiss.

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I.

FACTUAL & PROCEDURAL HISTORY

Plaintiff Joe Hand Promotions Inc. filed this suit against Defendants Kenneth T. Looney and

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HtwoO, LLC, alleging that Defendants showed an unlicensed broadcast of Unlimited Fighting

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Championship 113: Machinda v. Shogun 2 (“Program”). Plaintiff was granted the exclusive

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nationwide commercial distribution (closed-circuit) rights to the Program, and entered into

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sublicensing agreements with commercial entities throughout the country. Compl. ¶¶ 10-11.

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Although Defendants did not have a sublicense to show the Program, Defendants allegedly showed

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the Program at their commercial establishment in Berkeley. Compl. ¶ 13.

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Based on this unlicensed broadcast, Plaintiff now brings claims for violation of 47 U.S.C. §

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605, violation of 47 U.S.C. § 553, conversion, and violation of California Business and Professions

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Code § 17200 et seq. Defendant Looney, on behalf of himself and Defendant HtwoO, LLC,

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answered the complaint and raised several affirmative defenses. Docket No. 12 (“Answer.”).

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Plaintiff now moves to strike Defendants’ Answer as to Defendant HtwoO, LLC, as well as

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Defendants’ affirmative defenses. Docket No. 16. Defendants move to dismiss Plaintiff’s

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complaint. Docket No. 17.

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II.
A.

DISCUSSION

Plaintiff’s Motion to Strike
Under Federal Rule of Civil Procedure 12(F), “[t]he [C]ourt may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The purpose
of a 12(f) motion “is to avoid the expenditure of time and money that must arise from litigating

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For the Northern District of California

United States District Court

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spurious issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft Co.,

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618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527).

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1.

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The Court strikes Defendants’ Answer to the extent that it was filed on behalf of Defendant

Motion to Strike Defendant HtwoO, LLC’s Pro Se Answer

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HtwoO, LLC. A corporation may only appear in court through an attorney. Licht v. Am. W.

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Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994). Where a pro se litigant attempts to file an answer on

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behalf of a corporation, the answer must be stricken. See, e.g., DR JKL Ltd. v. HPC IT Educ. Ctr.,

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749 F. Supp. 2d 1038, 1048 (N.D. Cal. 2010). Because Defendant HtwoO, LLC is a limited liability

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corporation that must be represented by an attorney, the Court grants Plaintiff’s motion and strikes

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Defendant HtwoO’s Answer without prejudice.

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2.

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The Court also strikes Defendants’ affirmative defenses. An affirmative defense pleads

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“matters extraneous to the plaintiff’s prima facie case, which deny plaintiff’s right to recover, even if

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the allegations of the complaint are true. In contrast, denials of the allegations in the complaint or

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allegations that the Plaintiff cannot prove the elements of his claims are not affirmative defenses.”

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G & G Closed Circuit Events, LLC v. Nguyen, Case No.: 10-cv-00168-LHK, 2010 U.S. Dist. LEXIS

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104980, at *12 (N.D. Cal. Sept. 23, 2010). The court may strike an affirmative defense that “is

Motion to Strike Defendants’ Affirmative Defenses

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insufficient as a matter of pleading or as a matter of law.” J & J Sports Prods. v. Vizcarra, Case No.

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11-1151 SC, 2011 U.S. Dist. LEXIS 109732, at *3 (N.D. Cal. Sept. 27, 2011).

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Here, Defendants attempts to raise four affirmative defenses: (1) Plaintiff failed to prove that

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Defendants were aware of the sublicensing agreements; (2) Plaintiff failed to prove that the Program

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was shown at Defendants’ establishment; (3) Plaintiff failed to prove that Defendants were aware of

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the licensing requirements; and (4) Plaintiff failed to show that Defendants profited from showing

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the Program. Answer at 3. However, these averments are either not affirmative defenses, but are

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general denials of an element of Plaintiff’s claim, or are without legal merit. The Court thus strikes

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Defendants’ affirmative defenses with prejudice.
B.

Motion to Dismiss

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For the Northern District of California

United States District Court

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The Court denies Defendants’ motion to dismiss. Defendants primarily argue that

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Defendants are not liable for the amount of damages that Plaintiff is demanding. Docket No. 18 at

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2. As Defendants do not explain whether Plaintiff’s claims are legally deficient or present a theory

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on which dismissal can be granted, Defendants’ motion is denied.

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III.

CONCLUSION

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For the reasons stated above, the Court GRANTS Plaintiff’s motion to strike Defendants’

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Answer as to Defendant HtwoO, LLC without prejudice. Defendant HtwoO, LLC has 60 days to

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find counsel and file an answer to Plaintiff’s complaint. The Court GRANTS Plaintiff’s motion to

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strike Defendants’ affirmative defenses with prejudice, and DENIES Defendants’ motion to dismiss.

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This order disposes of Docket Nos. 16 and 17.

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IT IS SO ORDERED.

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Dated: December 8, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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