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

Filing 29

ORDER GRANTING MOTION TO STRIKE DEFENDANTS' AFFIRMATIVE DEFENSES The hearing scheduled for March 13, 2015 is vacated. The motion is granted and defendants' affirmative defenses are stricken. Defendants' request to file their pro posed amended answer is denied. If defendants wish to file a different amended answer, such pleading shall be filed no later than March 4, 2015. If no such amended pleading is filed, the case will proceed on the answer presently before the Court, in accordance with the rulings made herein. Signed by Judge Maxine M. Chesney on February 18, 2015. (mmclc2, COURT STAFF) (Filed on 2/18/2015)

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IN THE UNITED STATES DISTRICT COURT

For the Northern District of California

United States District Court

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 14-3923 MMC

J & J SPORTS PRODUCTIONS,
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ORDER GRANTING MOTION TO STRIKE
DEFENDANTS’ AFFIRMATIVE
DEFENSES

Plaintiff,
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v.
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JOEANN ELIZABETH PEPPERELL,
individually and dba FUNKEY MONKEY and
BABY DOT, INC., an unknown business
entity dba FUNKY MONKEY,
Defendants.
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Before the Court is the “Motion to Strike Defendants’ Affirmative Defenses,” filed
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January 23, 2015, by which plaintiff J & J Sports Productions, Inc. (“J & J”) seeks an order
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striking all affirmative defenses asserted in the answer filed jointly by defendants Joeann
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Elizabeth Pepperell, individually and d/b/a Funky Monkey, and Babydot, Inc., an unknown
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business entity d/b/a Funky Monkey (collectively, “Funky Monkey”). Funky Monkey has
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filed opposition, to which J & J has replied. Having read and considered the papers filed in
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support of and in opposition to the motion, the Court deems the matter suitable for decision
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on the parties’ respective written submissions, VACATES the hearing scheduled for March
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13, 2015, and finds, for the reasons stated by J & J, that each of the “affirmative defenses”

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asserted in defendants’ answer is deficient as pleaded.
Accordingly, the motion is hereby GRANTED and defendants’ affirmative defenses
are hereby STRICKEN.
In its opposition, Funky Monkey requests leave to file a proposed amended answer,

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in which all but one of the previously pleaded affirmative defenses have been removed and,

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as to the remaining affirmative defense, facts in support thereof have been added. The

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remaining “affirmative defense,” however, is not an affirmative defense, but, rather, as J & J

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points out, a denial of J & J’s allegation that Funky Monkey acted willfully. See Zivkovic v.

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S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (holding “[a] defense which

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demonstrates that [the] plaintiff has not met its burden of proof is not an affirmative

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defense”). Consequently, the proposed amendment would be futile.

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Accordingly, Funky Monkey’s request to file its proposed amended answer is hereby

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DENIED. See Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (holding

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leave to amend properly denied where amendment would be futile).

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If Funky Monkey wishes to file a different amended answer, such pleading shall be

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filed no later than March 4, 2015. If no such amended pleading is filed, the case will

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proceed on the answer presently before the Court, in accordance with the rulings made

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herein.

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IT IS SO ORDERED.

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Dated: February 18, 2015
MAXINE M. CHESNEY
United States District Judge

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