Davison Design & Development Inc. et al v. Riley

Filing 149

ORDER by Judge Hamilton denying 142 Motion to Strike; granting 139 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 9/13/2012)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 DAVISON DESIGN & DEVELOPMENT INC., et al., 8 Plaintiff(s), No. C 11-2970 PJH 9 v. 11 For the Northern District of California United States District Court 10 CATHY RILEY, et al., 12 ORDER DENYING MOTION TO STRIKE AND GRANTING MOTION TO DISMISS Defendant(s). _______________________________/ 13 14 Counter-claimant Cathy Riley’s motion to strike counter-defendant Spark Networks 15 USA, LLC’s first amended answer came on for hearing on September 12, 2012. Counter- 16 claimant Cathy Riley (“Riley”) appeared through her counsel, Daniel Balsam. Counter- 17 defendant Spark Networks USA, LLC (“Spark Networks”) appeared through its counsel, 18 Victor Fu. Having read the papers filed in conjunction with the motion and carefully 19 considered the arguments and the relevant legal authority, and good cause appearing, the 20 court hereby DENIES Riley’s motion, for the reasons stated at the hearing and as follows: 21 An affirmative defense can be struck if it does not provide the adverse party with “fair 22 notice” of the nature of the defense. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 23 1979). “Where an affirmative defense simply states a legal conclusion or theory without the 24 support of facts explaining how it connects to the instant case, it is insufficient and will not 25 withstand a motion to strike.” Solis v. Zenith Capital, LLC, 2009 WL 1324051 *2 (N.D. Cal. 26 May 8, 2009). However, in this case, Spark Networks does allege sufficient facts to provide 27 Riley with the required “fair notice.” Even under the heightened pleading standards 28 articulated in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 1 662 (2009), Spark Network’s affirmative defenses are sufficient. Thus, Riley’s motion to 2 strike is DENIED. 3 Also on for hearing was a motion to dismiss Riley’s second amended counter- 4 claims, filed by counter-defendants Caivis Acquisition Corp. II, Caivis Acquisition Corp. III, 5 Digital Publishing Corp., XL Marketing Corp., Spire Vision LLC, Spire Vision Holdings, 6 Proadvertisers LLC, Prime Advertisers LLC, MediActivate LLC, Serve Clicks LLC, 7 Connection Centrals, SilverInteractive, Opportunity Central, Davison Design & 8 Development Inc, and Ward Media Inc. (together, the “moving counter-defendants”). 9 Counter-defendants GMB Direct, Inc. and Spark Networks also join in the moving counterdefendants’ motion to dismiss. The moving counter-defendants appeared through their 11 For the Northern District of California United States District Court 10 counsel, Leeor Neta. Riley appeared through her counsel, Daniel Balsam. Having read 12 the papers filed in conjunction with the motion and carefully considered the arguments and 13 the relevant legal authority, and good cause appearing, the court hereby GRANTS the 14 moving counter-defendants’ motion to dismiss, for the reasons stated at the hearing and as 15 follows: 16 The moving counter-defendants note that the federal CAN-SPAM Act expressly 17 preempts all state laws related to spam e-mail, except to the extent that a state law 18 “prohibits falsity or deception in any portion of a commercial electronic mail message or 19 information attached thereto.” 15 U.S.C. § 7707(b)(1). The Ninth Circuit considered the 20 scope of this preemption exception in Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 21 2009). In Gordon, the Ninth Circuit held that “the express language of § 7707 22 demonstrated Congress’s intent that the CAN-SPAM Act broadly preempt state regulation 23 of commercial e-mail with limited, narrow exception,” and further held that “the exception 24 language, read as Congress intended, refers to ‘traditionally tortious or wrongful conduct.’” 25 Id. at 1061-62. Thus, consistent with the Ninth Circuit’s holding, the court finds that Riley’s 26 counter-claims do not sound in tort, and thus are preempted by the federal CAN-SPAM Act. 27 Accordingly, Riley’s counter-claims are DISMISSED with prejudice. 28 2 1 2 IT IS SO ORDERED. 3 Dated: September 13, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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