King.com Limited v. 6 Waves LLC

Filing 83

ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' FIRST, FOURTH AND SIXTH AFFIRMATIVE DEFENSES; AFFORDING DEFENDANTS LEAVE TO FILE SECOND AMENDED ANSWER. Signed by Judge Maxine M. Chesney on July 11, 2014. (mmclc2, COURT STAFF) (Filed on 7/11/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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KING.COM LIMITED,

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Plaintiff,

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No. C-13-3977 MMC
ORDER GRANTING PLAINTIFF’S
MOTION TO STRIKE DEFENDANTS’
FIRST, FOURTH AND SIXTH
AFFIRMATIVE DEFENSES; AFFORDING
DEFENDANTS LEAVE TO FILE SECOND
AMENDED ANSWER

v.
6 WAVES, LLC; SIX WAVES INC.,
Defendants.

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/

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Before the Court is plaintiff King.com Limited’s motion, filed May 14, 2014, to strike

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the First, Fourth, and Sixth Affirmative Defenses from defendants’ Amended Answer.

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Defendants 6 Waves LLC and Six Waves Inc. have filed opposition, to which plaintiff has

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replied. Having read and considered the papers filed in support of and in opposition to the

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motion, the Court deems the matter appropriate for determination on the parties’ respective

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written submissions, VACATES the hearing scheduled for July 11, 2014, and rules as

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follows.

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For the reasons stated by plaintiff (see Pl.’s Mot. at 5:17-27; Pl.’s Reply at 4:3-9,

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4:23-28), defendant’s First Affirmative Defense, “Failure to State a Claim,” will be stricken;

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“a defense which points out a defect in the plaintiff’s prima facie case is not an affirmative

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defense.” See Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir.

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2002); Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F. Supp. 2d

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1167, 1174 (N.D. Cal. 2010) (striking affirmative defense; noting “[f]ailure to state a claim is

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a defect in the plaintiff’s claim; it is not an additional set of facts that bars recovery

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notwithstanding the plaintiff’s valid prima facie case”) (internal quotation and citation

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omitted). Although the Court agrees with defendant that Rule 12(h)(2)(A) of the Federal

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Rules of Civil Procedure permits failure to state a claim to be raised in an answer, nothing

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in that rule states such assertion may be raised by way of an affirmative defense as

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opposed to a denial.

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For the reasons stated by plaintiff (see Pl.’s Mot. at 6:9-8:11; Pl.’s Reply at 4:14-6:19
& nn. 1-3), defendant’s Fourth Affirmative Defense, “Copyright Misuse,” will be stricken, as

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neither the cited terms of the license agreement nor plaintiff’s attempts to enforce its

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copyrights through litigation prevent licensees “from using any other competing product” or

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“from developing competing software,” see Apple Inc. v. Psystar Corp., 658 F.3d 1150,

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1157-58 (2011), and, to the extent the Fourth Affirmative Defense is based on the

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allegation that elements of plaintiff’s games are not protected by copyright, the defense is

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not affirmative in nature but, rather, constitutes an assertion that plaintiff has not met its

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burden of proof, see Zivkovic, 302 F.3d at 1088.

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For the reasons stated by plaintiff (see Pl.’s Mot. at 8:14-14:15; Reply at 7:5-8:2 &

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n.5), defendant’s Sixth Affirmative Defense, “License, Consent, Acquiescence, Waiver,

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Laches, Unclean Hands, Estoppel,” will be stricken, for two reasons. First, as to all such

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affirmative defenses other than unclean hands, defendants fail to allege any supporting

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facts. Second, to the extent their Sixth Affirmative Defense is based on unclean hands,

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defendants’ allegations that elements of plaintiff’s games are “commonplace” and were

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“derived by [p]laintiff from existing games,” and that plaintiff “has a history of doing exactly

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what it now claims [d]efendants have done” (see Amended Answer at 9:17-21), are

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insufficient to plead unclean hands, as such allegations are not “directly related to the

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merits of the controversy between the parties,” see Dream Games of Arizona, Inc. v. PC

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Onsite, 561 F.3d 983, 990 (9th Cir. 2009). In their opposition, defendants state plaintiff

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“made fraudulent representations to the Copyright Office regarding the extent of copyright
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protection to which it was allegedly entitled” and contend such conduct supports a finding of

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unclean hands. (See Opp’n at 9:12-21.) No such allegation appears in defendants’

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Amended Answer, however, and, consequently, is not further addressed herein.

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Accordingly, plaintiff’s motion is hereby GRANTED, and defendants’ First, Fourth,

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and Sixth Affirmative Defenses are hereby STRICKEN. If defendants wish to amend to

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cure the deficiencies identified above with respect to the Fourth and/or Sixth Affirmative

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Defense, defendants shall file, no later than July 25, 2014, a Second Amended Answer.

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IT IS SO ORDERED.

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Dated: July 11, 2014
MAXINE M. CHESNEY
United States District Judge

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