Mission Trading Company, Inc. v. Lewis et al
Filing
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ORDER GRANTING MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES AND COUNTERCLAIMS by Judge Jon S. Tigar granting 14 Motion to Strike. (wsn, COURT STAFF) (Filed on 9/13/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MISSION TRADING COMPANY, INC.,
Case No. 16-cv-01110-JST
Plaintiff,
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v.
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DAVID VINCENT LEWIS, et al.,
Defendants.
Re: ECF No. 14
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United States District Court
Northern District of California
ORDER GRANTING MOTION TO
STRIKE DEFENDANT’S
AFFIRMATIVE DEFENSES AND
COUNTERCLAIMS
Before the Court is Plaintiff Mission Trading Company, Inc.’s (“Mission Trading”) Motion
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to Strike Defendant’s Affirmative Defenses. ECF No. 14. The motion will be granted with leave
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to amend.
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I.
BACKGROUND
This is a false advertising and trademark infringement suit involving Defendants’ sale of
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products via Amazon.com. On March 4, 2016, Mission Trading filed a complaint against
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Defendants David Vincent Lewis and Sandra Gallagher Lewis, asserting claims for (1) false
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advertising and designation of origin; (2) trademark infringement; (3) unjust enrichment; (4)
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negligent interference with contractual relations; (5) intentional interference with prospective
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economic advantage; and (6) unfair competition. ECF No. 1. On April 1, 2016, Defendant Sandra
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Lewis, proceed pro se, filed an answer to the complaint on her behalf (but not on behalf of her
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husband, David Lewis). ECF No. 8. On April 26, 2016, Plaintiff filed a Motion to Strike
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Defendant’s Affirmative Defenses and Counterclaims. ECF No. 14. Defendant failed to file an
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Opposition brief. See ECF No. 18.
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II.
LEGAL STANDARD
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A.
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Under Federal Rule of Civil Procedure 12(f), a district court may strike from the pleadings
Motion to Strike Affirmative Defenses
“an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A
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defense is insufficiently pleaded if it fails to give a plaintiff “fair notice” of the nature of the
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defense. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). Although the Ninth
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Circuit has not addressed whether the Twombly/Iqbal heightened pleading standard applies to
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motions to strike affirmative defenses, the Court agrees with the many judges in this district who
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have found that the Twombly/Iqbal standard applies. See, e.g., Hernandez v. County of Monterey,
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306 F.R.D. 279, 283 (N.D. Cal. 2015) (“Most district courts in this circuit agree that the
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heightened pleading standard of Twombly and Iqbal . . . is now the correct standard to apply to
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affirmative defenses.”) (internal quotation marks omitted); Barnes & Noble, Inc. v. LSI Corp., 849
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F. Supp. 2d 925, 928 (N. D. Cal. 2012) (“Most courts have held that the Iqbal/Twombly pleading
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United States District Court
Northern District of California
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standards apply to affirmative defenses, such that they must state a plausible claim for relief.”);
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Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1172 (N.D.
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Cal. 2010) (“The court can see no reason why the same principles applied to pleading claims
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should not apply to the pleading of affirmative defenses which are also governed by Rule 8.”).
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Applying this heightened pleading standard requires a defendant to provide “some valid
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factual basis for pleading an affirmative defense” and allows a district court to “weed out the
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boilerplate listing of affirmative defenses which is commonplace in most defendants’ pleadings.”
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Barnes, 718 F. Supp. 2d at 1172 (internal quotation marks omitted). “Just as a plaintiff’s
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complaint must allege enough supporting facts to nudge a legal claim across the line separating
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plausibility from mere possibility, a defendant’s pleading of affirmative defenses must put a
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plaintiff on notice of the underlying factual bases of the defense.” Hernandez, 306 F.R.D. at 284.
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If an affirmative defense is stricken, the court should freely grant leave to amend when doing so
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would not cause prejudice to the opposing party. Wyshak, 607 F.2d at 826.
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B.
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On a Rule 12(b)(6) motion to dismiss, the Court accepts the material facts alleged by the
Motion to Dismiss Counterclaims
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non-moving party together with all reasonable inferences to be drawn from those facts, as
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true. Navarro v. Block, 250 F. 3d 729, 732 (9th Cir. 2001). However, “the tenet that a court must
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accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action's
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elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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To survive a motion to dismiss, the party asserting a claim must plead “enough facts to state a
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claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
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(2007). Plausibility does not mean probability, but it requires “more than a sheer possibility that a
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defendant has acted unlawfully.” Iqbal, 556 U.S. at 687.
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III.
DISCUSSION
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A. Affirmative Defenses
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Plaintiff moves to strike each of the affirmative defenses in Defendant Sandra Lewis’
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answer because the answer provides an insufficient factual basis for each of Defendant’s
affirmative defenses. ECF No. 14 at 5–8. Defendant has not offered any argument in response.
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United States District Court
Northern District of California
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See ECF No. 18. The Court agrees with Plaintiff and will therefore strike each of Defendant’s
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affirmative defenses with leave to amend.
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The answer pleads seven affirmative defenses: (1) assumption of risk; (2) contributory
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negligence; (3) duress; (4) estoppel; (5) failure of consideration; (6) fraud / unclean hands; and (7)
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illegality. ECF No. 8 at 3–9. After reviewing Defendant’s pro se answer in its entirety, the Court
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is unable to determine to which, if any, claims in the complaint each of Defendant’s affirmative
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defenses allegedly apply. Moreover, while each affirmative defense includes several paragraphs
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of factual allegations purportedly related to the affirmative defense in question, the Court cannot
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decipher the connection between Defendant’s allegations and each of the asserted affirmative
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defenses.
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For instance, Defendant’s first affirmative defense is “assumption of risk.” ECF No. 8 at
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3. “This defense stands for the principle that one who takes on the risk of loss, injury, or damage
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cannot maintain an action against a party that causes the loss, injury, or damage.” Quintana v.
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Baca, 233 F.R.D. 562, 566 (C.D. Cal. 2005) (quoting Black’s Law Dictionary 134 (8th ed.2004)).
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Based on the answer, however, the Court cannot determine to which claims this affirmative
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defense might apply. More importantly, based on the allegations in the answer, it is impossible for
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the Court to determine who is alleged to have assumed what risk. Indeed, the factual allegations
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in Defendant’s “assumption of risk” section appear to be entirely unrelated to any hypothetical
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assumption of risk defense. See id. Accordingly, the Court strikes this defense because it fails to
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put Plaintiff “on notice of the underlying factual bases of the defense.” Hernandez, 306 F.R.D. at
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284.
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Each of Defendant’s other affirmative defenses suffer from the same or similar
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deficiencies. Accordingly, the Court grants Plaintiff’s motion to strike each of Defendant’s
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affirmative defenses with leave to amend.
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B.
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Defendant’s answer does not contain a separate “counterclaim” section. However,
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Counterclaims
contained within Defendant’s prayer for relief is a request “[f]or a judgment that Plaintiff
unlawfully interfered with Defendant’s prospective economic advantage” and “[f]or intentional
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United States District Court
Northern District of California
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infliction of emotional distress.” ECF No. 8 at 9–10. Plaintiff construes these as counterclaims
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and moves the Court to dismiss both counterclaims under Rule 12(b)(6). ECF No. 14 at 9–
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Defendant has not filed an Opposition brief. See ECF No. 18.
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To the extent that these statements in Defendant’s answer can be construed as
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counterclaims at all, the Court agrees with Plaintiff that they fail to state a claim. Defendant has
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set forth no facts related to her counterclaims. See ECF No. 8 at 9–10. As such, Defendant has
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failed to plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
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U.S. at 570. Accordingly, the Court grants Plaintiff’s motion to dismiss Defendant’s
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counterclaims with leave to amend.
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CONCLUSION
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Plaintiff’s motion to strike Defendant’s affirmative defenses and motion to dismiss
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Defendant’s counterclaims is granted with leave to amend. Should Defendant choose to file an
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amended answer, the deadline to do so will be 30 days from the filing date of this order.
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IT IS SO ORDERED.
Dated: September 13, 2016
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JON S. TIGAR
United States District Judge
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