Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 101

REPLY (re 93 MOTION to Strike All Affirmative Defenses in Defendant GoDaddy's Answer to Amended Complaint ) filed byPetroliam Nasional Berhad. (Clark, Perry) (Filed on 7/19/2011)

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PERRY R. CLARK, State Bar No. 197101
Law Offices of Perry R. Clark
825 San Antonio Road
Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff
PETROLIAM NASIONAL BERHAD
(PETRONAS)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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PETROLIAM NASIONAL BERHAD
(PETRONAS),

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Plaintiff,

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vs.

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GODADDY.COM, INC.,

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Defendant.

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CASE NO.: 09-CV-5939 PJH
REPLY IN SUPPORT OF MOTION
TO STRIKE AFFIRMATIVE
DEFENSES OF GODADDY
Date: August 3, 2011
Time: 9:00 a.m.
Courtroom 3
Judge: Hon. Phyllis J. Hamilton

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REPLY IN SUPPORT OF MOTION TO STRIKE AFFIRMATIVE DEFENSES OF GODADDY
Case No: 09-CV-5939 PJH

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Petronas’s motion to strike should be granted for all eleven of the affirmative defenses in
GoDaddy’s Answer to Amended Complaint (“Answer”). (Doc. No. 89, filed May 19, 2011).

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With respect to its third through eleventh affirmative defenses, GoDaddy does not dispute

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that those affirmative defenses—as-pled in its Answer—are “[b]are statements reciting mere

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legal conclusions [that] do not provide a plaintiff with fair notice of the defense asserted, as

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required by Wyshak [v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979)]” and Fed. R. Civ.

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P. 8. CTF Dev., Inc. v. Penta Hospitality, LLC, 2009 U.S. Dist. LEXIS 99538 (N.D. Cal. Oct.

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26, 2009). Instead, GoDaddy argues that Petronas’s motion to strike is “moot” because

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“GoDaddy has submitted a motion for leave to amend its answer to, among other things, provide

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in the pleading the very factual statements Petronas claims are lacking.” 1 Opp. at 1:20-23. The

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fact that GoDaddy has filed a motion to amend its third through eleventh affirmative defenses,

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however, does not change the fact that those affirmative defenses as-pled its Answer are

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defective for the reasons set forth in Petronas’s motion to strike. And rather than render

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Petronas’s motion “moot,” GoDaddy’s motion to amend all but concedes the merits of Petronas’s

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motion. As such, and because GoDaddy fails to offer any argument against striking its third

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through eleventh affirmative defenses as they have been pled in its Answer, Petronas’s motion

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to strike should be granted as to them.

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For its first and second affirmative defenses which, unlike its other affirmative defenses,

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are not addressed by its motion to amend, GoDaddy makes a different argument—namely, that

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Petronas has been given “ample notice” of those defenses by virtue of GoDaddy’s pleadings

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other than its Answer. According to GoDaddy, its first and second affirmative defenses, which

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This is only partially accurate: GoDaddy’s motion to amend deals with GoDaddy’s third
through eleventh affirmative defenses. It does not seek to make any changes with respect to
GoDaddy’s first and second affirmative defenses.

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-2REPLY IN SUPPORT OF MOTION TO STRIKE AFFIRMATIVE DEFENSES OF GODADDY
Case No: 09-CV-5939 PJH

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allege that the complaint “fails to state a claim” and is barred “by the Lanham Act safe harbor for

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domain name registrars,” should not be stricken because they have “been explained

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exhaustively” and “set forth in detail” in “GoDaddy’s motion for judgment on the pleadings and

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its motion to dismiss.” Opp. at 2:4-24.

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But by conceding that its first and second affirmative defenses represent nothing more

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than the arguments it made in its motions for judgment on the pleadings and to dismiss,

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GoDaddy is conceding that they are, in fact, not affirmative defenses at all. It is well settled that,

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unlike GoDaddy’s first and second ‘affirmative defenses,’ “[a]n affirmative defense is an

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assertion raising new facts and arguments that, if true, will defeat plaintiff's claim, even if all the

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allegations in the complaint are true.” E.E.O.C. v. California Psychiatric Transitions, Inc., 725

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F. Supp. 2d 1100, 1118 (E.D. Cal. 2010) (citing See Saks v. Franklin Covey Co., 316 F.3d 337,

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350 (2nd Cir. 2003)). As one treatise has observed, “[s]ome lawyers routinely plead as

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‘affirmative defenses’ that: ‘plaintiff has failed to state a claim upon which relief may be

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granted,’ . . . [s]uch routine allegations are not recommended [and] are unnecessary . . . because

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these matters are never waived (FRCP 12(h)(2)).” Schwarzer, et al., Federal Civil Procedure

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Before Trial ¶ 8:1058 (Rutter 2010). As such, GoDaddy’s only argument against striking its first

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and second affirmative defenses establishes merely that they are not ‘affirmative defenses’ at all

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and are, in any event, unnecessary.

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Accordingly, Petronas’s motion to strike should be granted in its entirety.
Dated: July 19, 2011

LAW OFFICES OF PERRY R. CLARK

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By:

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/s/ Perry R. Clark
Perry R. Clark
Attorney for Plaintiff
PETROLIAM NASIONAL BERHAD

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-3REPLY IN SUPPORT OF MOTION TO STRIKE AFFIRMATIVE DEFENSES OF GODADDY
Case No: 09-CV-5939 PJH