Andersen Tax LLC v. Laffont-Reveilhac et al

Filing 41

ORDER Granting in Part and Denying in Part 27 Plaintiff's Motion to Strike Defendant's Answer. Signed by Judge Edward M. Chen on 6/16/2017. (emcsec, COURT STAFF) (Filed on 6/16/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDERSEN TAX LLC, Plaintiff, 8 v. 9 10 11 Case No. 17-cv-01311-EMC STEPHANE LAFFONT-REVEILHAC, et al., ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER Docket No. 27 12 For the Northern District of California United States District Court Defendants. 13 On March 13, 2017, Plaintiff brought this lawsuit against Defendants Stephane Laffont- 14 15 Réveilhac (“Laffont-Réveilhac”), Veronique Martinez (“Martinez”), Arthur Andersen & Co., SAS 16 (“AA&C”), and MoHala Enterprises, LLC (“MoHala”), alleging trademark counterfeiting under 17 15 U.S.C. § 1114, trademark under 15 U.S.C. § 1114, unfair competition arising under the 18 California Business & Professions Code § 17200, et seq., and other related claims. See Docket 19 No. 1. On April 13, 2017, Plaintiff and Defendant MoHala entered into a Confidential Settlement 20 Agreement through which MoHala agreed to the entry of a Consent Judgment and Permanent 21 Injunction against it. Docket No. 22. The Court entered the Consent Judgment against MoHala 22 on April 17, 2017. Docket No. 23. On April 18, 2017, Defendants filed an Answer. Docket No. 23 24. 24 Pending before the Court is Plaintiff’s motion to strike Defendants’ Answer. Docket No. 25 27. The Court grants Plaintiff’s motion with respect to Defendants Martinez and AA&C but 26 denies it with respect to Defendant Laffont-Réveilhac. Laffont-Réveilhac cannot sign on behalf of 27 AA&C because only counsel can sign a pleading for corporate entities like AA&C. See 28 U.S.C. 28 § 1654; Civil Local Rule 3-9(b); Rowland v. California Men’s Colony, Unit II Men’s Advisory 1 Council, 506 U.S. 194, 202 (1993). Neither can Laffont-Réveilhac sign on behalf of Martinez 2 because the privilege to appear in propria person is personal to himself. See 28 U.S.C. § 1654; 3 Civil Local Rule 3-9(a); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966). As stated 4 at the hearing, AA&C can only appear through an attorney. Ms. Martinez may appear but absent 5 representation by counsel, she must sign any pleading herself. 6 Plaintiff also requests that the Court strike assertions in the Answer regarding purported Docket No. 27 at 5-8. The Court agrees with Plaintiff that the Answer fails to demonstrate that 9 Defendants’ foreign trademark registrations should break “[t]he concept of territoriality . . . basic 10 to trademark law.” Person’s Co., Ltd. v. Christman, 900 F.2d 1565, 1568-69 (Fed. Cir. 1990); see 11 La Societe Anonyme des Parfums Le Galion v. Jean Patou, 495 F.2d 1265, 1271 n.4 (2d Cir. 12 For the Northern District of California foreign trademark rights and proceedings and references to the Paris Convention under Rule 12(f). 8 United States District Court 7 1974) (citation omitted) (“It is well settled that foreign use is ineffectual to create trademark rights 13 in the United States.”); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 1956) 14 (“[F]oreign law confers no privilege in this country that our courts are bound to recognize.”). 15 Having a foreign trademark registration is not a direct legal defense to an infringement claim in 16 the United States. 17 However, at this stage of the litigation, the Court cannot discern whether these assertions 18 will turn out to be entirely irrelevant. Thus, the Court, at this time, does not take the extraordinary 19 measure of striking these assertions. 20 Plaintiff also argues that to the extent that paragraph 11 of the Answer suggests an 21 affirmative defense such as unclean hands or other equitable defense, they are inadequately plead 22 and should be stricken under Rule 12(f). Docket No. 27 at 8-11. An affirmative defense is 23 insufficiently pled if it does not provide a fair notice of the nature of the defense. Wyshak v. City 24 Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). The Supreme Court’s decision in Twombly 25 requires that a party allege “enough facts to state a claim to relief that is plausible on its face.” Bell 26 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In 2009, the Supreme Court, in Ashcroft v. 27 Iqbal, 556 U.S. 662, 677 (2009), clarified that Twombly was based on the interpretation and 28 application of Federal Rule of Civil Procedure 8, thereby extending Twombly’s pleading standard 2 1 to all civil cases. The Ninth Circuit has yet to rule on whether Twombly and Iqbal should apply to 2 the pleading of affirmative defenses. However, “the vast majority of courts presented with the 3 issue have extended Twombly’s heightened pleading standard to affirmative defenses.” Barnes v. 4 AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1171 (N.D. Cal. 2010); 5 see also CTF Dev., Inc. v. Penta Hospitality, LLC, 2009 WL 3517617, at *7-8 (N.D. Cal. Oct. 26, 6 2009) (“Under the Iqbal standard, the burden is on the defendant to proffer sufficient facts and law 7 to support an affirmative defense”). Even under the heightened standard, however, the Court finds that the Answer gave 8 9 Plaintiff sufficient notice of the basis of Defendants’ defense: that Plaintiff created brands to extent that the Answer asserts an affirmative defense such as unclean hands or other equitable 12 For the Northern District of California impersonate brands owned by Defendants and caused deception in the marketplace. Thus, to the 11 United States District Court 10 defense, the Court does not strike it. Lastly, the Court finds that Laffont-Réveilhac waived any objections to personal 13 14 jurisdiction under Federal Rule of Civil Procedure 12(h) by filing and signing an answer that does 15 not contest personal jurisdiction. See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A 16 general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction 17 will waive any defect in service or personal jurisdiction.”). The Court does not find that Martinez 18 or AA&C waived objections to personal jurisdiction because they failed to make a voluntary 19 general appearance through a valid Answer. Defendants are given until July 31, 2017 to find counsel and/or to file an amended Answer. 20 21 Although the Court has not stricken Defendant Laffont-Réveilhac’s Answer, he is advised to file 22 an amended Answer that complies more fully with Rule 8. If any party is not represented by 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 counsel, he or she should consult with the Court’s handbook, “Representing Yourself in Federal 2 Court: A Handbook for Pro Se Litigants,” which is available to download electronically at the 3 Court’s website, 4 This order disposes of Docket No. 27. 5 6 IT IS SO ORDERED. 7 8 9 10 Dated: June 16, 2017 ______________________________________ EDWARD M. CHEN United States District Judge 12 For the Northern District of California United States District Court 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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