Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 55

MOTION to Strike GoDaddy's Affirmative Defenses CORRECTION OF DOCKET #54 filed by Petroliam Nasional Berhad. Motion Hearing set for 9/29/2011 09:00 AM in Courtroom 3, 3rd Floor, Oakland. (Clark, Perry) (Filed on 8/25/2010)

Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Doc. 5

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PERRY R. CLARK, State Bar No. 197101 Law Offices of Perry R. Clark 3457 Cowper St. Palo Alto, CA 94306 Telephone: [phone] Facsimile: [phone] [e-mail] Attorney for Plaintiff PETROLIAM NASIONAL BERHAD (PETRONAS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PETROLIAM NASIONAL BERHAD, Plaintiff, vs. GODADDY.COM, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 09-CV-5939 PJH MOTION TO STRIKE AFFIRMATIVE DEFENSES OF GODADDY Date: September 29, 2010 Time: 9:00 a.m. Courtroom 3 Judge: Hon. Phyllis J. Hamilton

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

Dockets.Justia.com

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NOTICE OF MOTION TO ALL PARTIES AND COUNSEL OF RCORD: Please take notice that pursuant to Fed. R. Civ. P. 12(f), Plaintiff Petroliam Nasional Berhad ("Plaintiff" or "Petronas") hereby moves this Court to strike all of Defendant GoDaddy.com, Inc.'s affirmative defenses in its complaint (Docket No. 27, attached hereto as Ex. A for convenience). Plaintiff further provides notice that pursuant to the Court's practice, Plaintiff has selected September 29, 2010 at 9 a.m. as the date the motion will be heard. MEMORANDUM IN SUPPORT Plaintiff's motion to strike should be granted because all of GoDaddy's Affirmative Defenses are pled as a mere list of the common names for certain defenses and fail to provide notice of the factual or legal grounds, if any, for the defenses. Federal Rule of Civil Procedure 12(f) provides that a court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Whether a pleading is procedurally sufficient so as to withstand a motion to strike is governed by Fed. R. Civ. P. Rule 8(c), under which "the key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979). "Bare statements reciting mere legal conclusions do not provide a plaintiff with fair notice of the defense asserted, as required by Wyshak" and Rule 8. CTF Dev., Inc. v. Penta Hospitality, LLC, 2009 U.S. Dist. LEXIS 99538 (N.D. Cal. Oct. 26, 2009) (striking affirmative defenses pled as "all or some of [plaintiff's] claims are barred under the doctrine of unclean hands" and "all or some of [plaintiff's] claims are barred because any marks claimed by [plaintiff], including its registration for PENTA (U.S. Reg. No. 3,568,660), are invalid.") A court may "strike defenses that do no more than name the defenses without listing their elements or supporting facts." Qarbon.com Inc. v. eHelp Corp., -2MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES OF GODADDY Case No: 09-CV-5939 PJH

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315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004) (striking affirmative defenses and stating plaintiff is "barred from recovery in whole or in part by the doctrines of waiver, estoppel, and unclean hands."). "Where an affirmative defense simply states a legal conclusion or theory without the support of facts explaining how it connects to the instant case, it is insufficient and will not withstand a motion to strike." Solis v. Zenith Capital, LLC, No. C-08-4854, 2009 U.S. Dist. LEXIS 43350, at *8-19 (N.D. Cal. May 8, 2009) (citing Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984)). Here, defendant's complaint simply lists defenses, such as "waiver," "laches," or "acquiescence" without providing any supporting facts. Ex. A (Compl. at 8:8-28). For others, GoDaddy identifies general legal concepts but provides no indication of the legal or factual basis for their application to the complaint or this case, such as the "failure of Petronas to mitigate damages" or "the Lanham Act safe harbor for registrars." Id. GoDaddy also states, with no specificity at all, that the complaint "fails to state claim upon which relief can be granted" but provides not information of any kind as why this might be true. Because the affirmative defenses in GoDaddy's answer fail to meet the pleading standard set forth in Rule 8, they should be stricken pursuant Rule 12(f). Dated: August 25, 2010 LAW OFFICES OF PERRY R. CLARK

By:

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

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

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Ex. A