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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVISON DESIGN & DEVELOPMENT
INC., et al.,

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Plaintiff(s),

No. C 11-2970 PJH

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v.
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For the Northern District of California

United States District Court

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CATHY RILEY, et al.,

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ORDER DENYING MOTION TO STRIKE
AND GRANTING MOTION TO DISMISS

Defendant(s).
_______________________________/

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Counter-claimant Cathy Riley’s motion to strike counter-defendant Spark Networks

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USA, LLC’s first amended answer came on for hearing on September 12, 2012. Counter-

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claimant Cathy Riley (“Riley”) appeared through her counsel, Daniel Balsam. Counter-

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defendant Spark Networks USA, LLC (“Spark Networks”) appeared through its counsel,

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Victor Fu. Having read the papers filed in conjunction with the motion and carefully

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considered the arguments and the relevant legal authority, and good cause appearing, the

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court hereby DENIES Riley’s motion, for the reasons stated at the hearing and as follows:

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An affirmative defense can be struck if it does not provide the adverse party with “fair

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notice” of the nature of the defense. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir.

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1979). “Where an affirmative defense simply states a legal conclusion or theory without the

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support of facts explaining how it connects to the instant case, it is insufficient and will not

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withstand a motion to strike.” Solis v. Zenith Capital, LLC, 2009 WL 1324051 *2 (N.D. Cal.

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May 8, 2009). However, in this case, Spark Networks does allege sufficient facts to provide

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Riley with the required “fair notice.” Even under the heightened pleading standards

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articulated in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.

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662 (2009), Spark Network’s affirmative defenses are sufficient. Thus, Riley’s motion to

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strike is DENIED.

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Also on for hearing was a motion to dismiss Riley’s second amended counter-

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claims, filed by counter-defendants Caivis Acquisition Corp. II, Caivis Acquisition Corp. III,

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Digital Publishing Corp., XL Marketing Corp., Spire Vision LLC, Spire Vision Holdings,

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Proadvertisers LLC, Prime Advertisers LLC, MediActivate LLC, Serve Clicks LLC,

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Connection Centrals, SilverInteractive, Opportunity Central, Davison Design &

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Development Inc, and Ward Media Inc. (together, the “moving counter-defendants”).

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Counter-defendants GMB Direct, Inc. and Spark Networks also join in the moving counterdefendants’ motion to dismiss. The moving counter-defendants appeared through their

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For the Northern District of California

United States District Court

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counsel, Leeor Neta. Riley appeared through her counsel, Daniel Balsam. Having read

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the papers filed in conjunction with the motion and carefully considered the arguments and

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the relevant legal authority, and good cause appearing, the court hereby GRANTS the

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moving counter-defendants’ motion to dismiss, for the reasons stated at the hearing and as

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follows:

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The moving counter-defendants note that the federal CAN-SPAM Act expressly

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preempts all state laws related to spam e-mail, except to the extent that a state law

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“prohibits falsity or deception in any portion of a commercial electronic mail message or

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information attached thereto.” 15 U.S.C. § 7707(b)(1). The Ninth Circuit considered the

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scope of this preemption exception in Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir.

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2009). In Gordon, the Ninth Circuit held that “the express language of § 7707

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demonstrated Congress’s intent that the CAN-SPAM Act broadly preempt state regulation

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of commercial e-mail with limited, narrow exception,” and further held that “the exception

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language, read as Congress intended, refers to ‘traditionally tortious or wrongful conduct.’”

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Id. at 1061-62. Thus, consistent with the Ninth Circuit’s holding, the court finds that Riley’s

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counter-claims do not sound in tort, and thus are preempted by the federal CAN-SPAM Act.

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Accordingly, Riley’s counter-claims are DISMISSED with prejudice.

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IT IS SO ORDERED.

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Dated: September 13, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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