Joe Hand Promotions, Inc. v. Kerachi et al

Filing 19

ORDER GRANTING 18 Stipulation RE: Defendants' Affirmative Defenses. Signed by Judge JEFFREY S. WHITE on 9/30/11. (jjoS, COURT STAFF) (Filed on 9/30/2011)

Case3:11-cv-02817-JSW Document18

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BRUCE J. NAPELL (State Bar No. 115116)
LAW OFFICE OF BRUCE NAPELL
584 Woodbine Drive
San Rafael, California 94903
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Filed09/29/11 Page1 of 4

Attorney for Defendants

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

LAW OFFICE OF BRUCE NAPELL

1584 Woodbine Drive, San Rafael, CA 94903
[phone] [phone] Fax

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Plaintiff,

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CASE NO: CV 11-02817 JSW

JOE HAND PROMOTIONS, INC.,

vs.

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STIPULATION TO FILE AMENDED
ANSWER AND WITHDRAW MOTION
TO STRIKE;
[PROPOSED] ORDER

ALI KERACHI and MOHAMMAD
KERACHI, INDIVIDUALLY and d/b/a
ROUND TABLE PIZZA,
Defendants.

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STIPULATION TO FILE AMENDED ANSWER AND WITHDRAW
MOTION TO STRIKE

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1.

Plaintiff filed the Complaint in this matter on June 9, 2011. Defendants’ Answer

was filed on August 29, 2011.
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Defendants’ Answer included five affirmative defenses. Plaintiff filed a motion to

strike the affirmative defenses, which is currently scheduled to be heard on October 28, 2011 at
1:30 p.m.
3.

The Complaint alleges that Defendants received and displayed a pay per view

television event on June 12, 2010 in a Round Table Restaurant without obtaining the necessary
license from Plaintiff. Based on that allegation, the Complaint includes causes of action under 47
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Case3:11-cv-02817-JSW Document18

Filed09/29/11 Page2 of 4

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U.S.C. §§ 605 and 553, California Business and Professions Code § 17200, et seq., and for

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conversion.

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4.

Defendants’ Answer denied the Complaint’s essential allegations, and plead the

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following affirmative defenses: statute of limitations, other parties’ fault, laches, failure to

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mitigate, and failure to give notice and opportunity to cure.

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5.

Plaintiff’s motion to strike asserts that Defendants’ five affirmative defenses are

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subject to being stricken as “immaterial” or “impertinent matter” under FRCP Rule 12(f).

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Specifically, Plaintiff asserts as to each affirmative defense as follows:

LAW OFFICE OF BRUCE NAPELL

a. Statute of limitations – the shortest statutory period applicable to the claims in the

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1584 Woodbine Drive, San Rafael, CA 94903
[phone] [phone] Fax

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Complaint is one year. The Complaint was filed within one year of the broadcast

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of the pay per view event, thus under the set of facts alleged in the Complaint,

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there is no defense available based on any statute of limitations;

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b. Fault of Others – Plaintiff asserts that alleging the claimed damage to be the fault

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of others merely negates the element of causation, and thus is not an “affirmative

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defense.”

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c. Laches – Plaintiff asserts that laches is a defense only to claims in equity (thus only

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potentially applicable to the California State law claim), that the statute of

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limitations on that claim is four years, and that there is a strong presumption that

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laches will not apply where a claim was brought within the analogous limitation

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period.

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d. Failure to Mitigate – Plaintiff asserts that failure to mitigate is inapplicable to

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claims brought for statutory damages.

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e. Failure to Give Notice of Violation or Opportunity to Cure – Plaintiff asserts that

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there is no requirement that a defendant be provided with notice before being sued

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under 47 USC §§ 605 or 553.

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//

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//

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//
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6.

Filed09/29/11 Page3 of 4

The parties have agreed, rather than require further argument and a hearing on the

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matter, that Defendants will withdraw their affirmative defenses for the reasons set out above, and

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file an Amended Answer (proposed Amended Answer attached as Exhibit A).

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7.

The parties therefore agree, and request the Court’s approval, that Defendants’

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affirmative defenses are withdrawn, that Plaintiff’s Motion to Strike is withdrawn, and that

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Defendants’ Amended Answer (in the form attached as Exhibit A to this Stipulation) will be filed

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within five days of the date of the Court’s Order.

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LAW OFFICE OF BRUCE NAPELL

1584 Woodbine Drive, San Rafael, CA 94903
[phone] [phone] Fax

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STIPULATION

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The parties, through their respective counsel, hereby stipulate that, subject to Court approval

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and for the reasons set out in Paragraph 5 above, Defendants’ affirmative defenses are withdrawn,

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that Plaintiff’s Motion to Strike is withdrawn, and that Defendants’ Amended Answer will be

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filed within five days of the date of the Court’s Order.

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Dated: September 28, 2011

Law Office of Bruce Napell

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LAW OFFICE OF BRUCE NAPELL

1584 Woodbine Drive, San Rafael, CA 94903
[phone] [phone] Fax

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By:

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Bruce Napell
584 Woodbine Drive
San Rafael, Calif. 94903
707-291-2245
Attorney for Defendants

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/s/

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Dated: September 28, 2011

Law Office of Thomas P. Riley, P.C.

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By:

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Thomas P. Riley
First Library Square
1114 Fremont Avenue
South Pasadena, Calif. 91030
626-799-9797
Attorney for Plaintiff

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/s/

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Dated: September ____, 2011 PURSUANT TO STIPULATION, IT IS SO ORDERED.

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JUDGE
United States District Court
Northern District of California

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STIPULATION C 11-02817 JSW