Joe Hand Promotions, Inc. v. Davis

Filing 41

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART PLAINTIFFS 28 MOTION TO STRIKE AFFIRMATIVE DEFENSES. (ndr, COURT STAFF) (Filed on 10/9/2012)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4

JOE HAND PROMOTIONS, INC.,

5

Plaintiff,

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7
8
9

No. C 11-6166 CW

v.
BILL DAVIS, Individually and dba
WEST COAST CIGARS,

ORDER GRANTING IN
PART AND DENYING IN
PART PLAINTIFF’S
MOTION TO STRIKE
AFFIRMATIVE DEFENSES
[Docket No. 28]

Defendants.
________________________________/

United States District Court
For the Northern District of California

10
11

On June 11, 2012, Plaintiff Joe Hand Promotions, Inc. filed a

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motion to strike the affirmative defenses asserted by Defendant

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Bill Davis, individually and doing business as West Coast Cigars.

14

Defendant filed an opposition to Plaintiff’s motion on June 25,

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2012.

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oral argument.

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and the relevant legal authority, the Court grants Plaintiff's

18

motion in part and denies it in part.

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The Court takes Plaintiff’s motion under submission without
Having considered the papers filed by the parties

BACKGROUND

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On December 8, 2011, Plaintiff Joe Hand Promotions, Inc.

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filed this action against Defendant Bill Davis, individually and

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doing business as West Coast Cigars, bringing claims for

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conversion and for violations of 47 U.S.C. §§ 553 and 605 and

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California Business and Professions Code section 17200, et seq.

25

Plaintiff filed a first amended complaint (1AC) on February 28,

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2012.

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nationwide commercial distribution rights to Ultimate Fighting

28

Championship 124: Georges St. Pierre v. Josh Koscheck (the

Plaintiff alleges that it was granted the exclusive

1

program), which was telecast nationwide on December 11, 2010.

2

¶ 14.

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intercepted and exhibited the program at his commercial

4

establishment, West Coast Cigars.

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a motion to dismiss the 1AC which the Court denied by order

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entered May 14, 2012.

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1AC

Plaintiff alleges that Defendant Davis unlawfully

1AC ¶¶ 11, 17.

Defendant filed

On May 29, 2012, Defendant filed an answer to the 1AC and a

8

third party complaint against DirecTV, LLC (named as DirecTV,

9

Inc.), asserting fifteen affirmative defenses to Plaintiff’s

United States District Court
For the Northern District of California

10

claims:1 (1) failure to state a claim; (2) no individual liability

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of defendant; (3) no right to recover; (4) no recovery under both

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§ 553 and § 605; (5) no cable system; (6) damages caused by

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others; (7) method of valuation; (8) failure to mitigate damages;

14

(9) unjust enrichment; (10) no basis for conversion;

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(11) defendant was unaware; (12) reservation of defenses;

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(13) statutes of limitations; (14) failure to state a claim

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against member of a limited liability company; (15) failure to

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name an indispensable party.

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Plaintiff filed the instant motion to strike all of Defendant’s

20

affirmative defenses.

21

opposition to which Plaintiff filed a reply.

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The matter is now submitted on the papers.

Docket No. 27.

Docket No. 28.

On June 11, 2012,

Defendant timely filed an
Docket Nos. 30, 31.

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24
25
26
27
28

1

The answer entitles two affirmative defenses as the
“Fourteenth Affirmative Defense.” Docket No. 27 at 7. Defendant
concedes that the fifteenth affirmative defense was erroneously
entitled “Fourteenth Affirmative Defense.” Docket No. 30 at 17.
For clarity, the second “Fourteenth Affirmative Defense” is
referred to as the “fifteenth affirmative defense.”
2

1

LEGAL STANDARD

2

Federal Rule of Civil Procedure 8 requires that, when

3

“responding to a pleading, a party must . . . state in short and

4

plain terms its defenses to each claim asserted against it.”

5

R. Civ. P. 8(b).

6

motion from a party, a “court may strike from a pleading an

7

insufficient defense or any redundant, immaterial, impertinent, or

8

scandalous matter.”

9

Rule 12(f) motion is to avoid spending time and money litigating

Fed.

Rule 12(f) provides that, on its own or on a

Fed. R. Civ. P. 12(f).

“The purposes of a

United States District Court
For the Northern District of California

10

spurious issues.”

11

Nonbargained Program, 718 F. Supp. 2d 1167 (N.D. Cal. 2010)

12

(citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.

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1993), reversed on other grounds, 510 U.S. 517 (1994)).

14

Barnes v. AT&T Pension Benefit Plan -

“The Ninth Circuit has long held that ‘[t]he key to

15

determining the sufficiency of pleading an affirmative defense is

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whether it gives plaintiff fair notice of the defense.’”

17

Gordon & Wong Law Group, P.C., 2012 WL 1029425, at *6 (N.D. Cal.)

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(quoting Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir.

19

1979)).

20

pleading standard for complaints governed by Conley v. Gibson, 355

21

U.S. 41 (1957), to the pleading of affirmative defenses.

22

Wyshak, 607 F.2d at 827 (citing Conley, 355 U.S. at 47–48).

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Conley held that “a complaint should not be dismissed for failure

24

to state a claim unless it appears beyond doubt that the plaintiff

25

can prove no set of facts in support of his claim which would

26

entitle him to relief.”

27

However, the Supreme Court’s decisions in Bell Atlantic Corp. v.

28

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

Perez v.

In Wyshak, the Ninth Circuit applied the fair notice

See

355 U.S. at 45–46 (footnote omitted).

3

1

(2009), “departed from Conley and redefined the pleading

2

requirements under Rule 8.”

3

Twombly and Iqbal, ‘the pleading standard Rule 8 announces . . .

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demands more than an unadorned, the-defendant-unlawfully-harmed-me

5

accusation.’”

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order to give the defendant fair notice of what the . . . claim is

7

and the grounds upon which it rests,’ Twombly, 550 U.S. at 554–55,

8

‘a complaint must contain sufficient factual matter, accepted as

9

true, to state a claim to relief that is plausible on its face,

Id. (quoting Iqbal, 556 U.S. at 678).

10
United States District Court
For the Northern District of California

Perez, 2012 WL 1029425 at *6.

Iqbal, 556 U.S. at 678.’”

11

“Under

“Rather, ‘in

citations omitted).

12

Id. (internal quotation marks and

Like other judges in this district who have considered the

13

question of what pleading standard applies to affirmative

14

defenses, this Court has recently held that “the heightened

15

pleading standard set forth in Twombly and Iqbal also applies to

16

affirmative defenses.”

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2012 WL 1746848 at *5 (N.D. Cal.).

18

heightened pleading to affirmative defenses serves a valid purpose

19

in requiring at least some valid factual basis for pleading an

20

affirmative defense and not adding it to the case simply upon some

21

conjecture that it may somehow apply.’”

22

at 1171-72 (quoting Hayne v. Green Ford Sales, Inc., 263 F.R.D.

23

647, 650 (D. Kan. 2009)).

24

Gullace LLP, 2012 WL 160221, at *2 (N.D. Cal.); Perez, 2012 WL

25

1029425, at *6; Bottoni v. Sallie Mae, Inc., 2011 WL 3678878, at

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*2 (N.D. Cal.); J & J Sports Productions v. Mendoza-Govan, 2011 WL

27

1544886, at *1 (N.D. Cal.).

Powertech Tech., Inc. v. Tessera, Inc.,
“‘Applying the standard for

Barnes, 718 F. Supp. 2d

See also Dion v. Fulton Friedman &

If a defense is struck, “[i]n the

28
4

1

absence of prejudice to the opposing party, leave to amend should

2

be freely given.”

Wyshak, 607 F.2d at 826.

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4

DISCUSSION
I.

Motion to Strike All Affirmative Defenses

5

Plaintiff moves to strike all the affirmative defenses under

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the pleading standard set forth in Twombly and Iqbal, requiring a

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party to allege a sufficient factual basis to state an affirmative

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defense that is “plausible on its face.”

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at 1172.

Barnes, 718 F. Supp. 2d

Under either the heightened Twombly and Iqbal pleading

United States District Court
For the Northern District of California

10

standard or the less demanding pleading standard underlying

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Wyshak, Defendant has adequately plead the fifteenth affirmative

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defense for failure to join a necessary party, but has not plead

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sufficient defenses in the first through fourteenth affirmative

14

defenses.

15

A.

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Defendant’s first affirmative defense states, “defendant

Failure to State a Claim

17

alleges that neither the Complaint, nor any purported claim

18

asserted therein, states facts sufficient to constitute a cause of

19

action against defendant.”

20

Defendant’s first affirmative defense should be stricken, because

21

failure to state a claim is not a valid affirmative defense.

22

Answer 4:4-7.

Plaintiff argues that

Some courts in this district have held that “‘[f]ailure to

23

state a claim is not a proper affirmative defense but, rather,

24

asserts a defect in [the plaintiff’s] prima facie case.’”

25

Sports Productions v. Vizcarra, 2011 WL 4501318, at *3 (N.D. Cal.)

26

(quoting Mendoza–Govan, 2011 WL 1544886 at *5).

27

718 F. Supp. 2d at 1174; Perez, 2012 WL 1029425 at * 11.

28

in Valley Community Bank v. Progressive Cas. Ins. Co., 2011 WL
5

J & J

See also Barnes,
However,

1

1833116, *3 (N.D. Cal.), the court held that “Federal Rule of

2

Civil Procedure 12(h)(2) provides that failure to state a claim

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upon which relief may be granted is a defense that may be raised

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in any pleading allowed or ordered under Federal Rule of Civil

5

Procedure 7(a),” such as an answer.

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the plaintiff’s motion to strike the affirmative defense of

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failure to state a claim.

8
9

United States District Court
For the Northern District of California

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The court therefore denied

Rule 12(h), which governs waiving and preserving certain
defenses, states in part as follows:

11

Failure to state a claim upon which relief can be
granted, to join a person required by Rule 19(b), or
to state a legal defense to a claim may be raised:

12

(A) in any pleading allowed or ordered under Rule 7(a);

13

(B) by a motion under Rule 12(c); or

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(C) at trial.

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Fed. R. Civ. P. 12(h)(2).

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authority as to whether failure to state a claim is a valid

17

affirmative defense.

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argues, however, that even if this defense is expressly permitted

19

by Rule 12(h)(2), the Court has already held that “the

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allegations in the First Amended Complaint are sufficient to

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satisfy the requirements of Rule 8(a) of the Federal Rules of

22

Civil Procedure in that they provide Defendant fair notice of

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legally cognizable claims and the grounds on which they rest.”

24

The Court denied Defendant’s motion to dismiss for failure to

25

state a claim pursuant to Rule 12(b)(6).

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denying motion to dismiss 1AC).

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sufficiency of the allegations of the 1AC stands as the law of the

Plaintiff recognizes the split of

Docket No. 31 (Reply) at 3.

Plaintiff

Docket No. 25 (Order

Because the Court’s ruling on the

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6

1

case, the motion to strike the first affirmative defense is

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granted with prejudice.

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B.

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The fifteenth affirmative defense alleges as follows:

5

Defendant Bill Davis was sued individually and,
erroneously, as d/b/a West Coast Cigars. In fact
West Coast Cigars is a limited liability company, and
Bill Davis is a member of the LLC. Defendant is a
member of the LLC, which protects him from individual
liability, and Plaintiff offers no facts which would
deprive Defendant of his protection thereby.

6
7
8
9

Failure to Join Indispensable Party

Answer 7:8-17 (second “Fourteenth Affirmative Defense”).

Failure

United States District Court
For the Northern District of California

10

to join a party required to be joined by Rule 19 is a defense

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expressly permitted by Rule 12(h)(2).

12

Plaintiff contends that Defendant “makes no effort to explain

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how West Coast Cigars, LLC” is a necessary or indispensable party.

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Docket No. 28 at 14.

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Coast Cigars, the commercial establishment where Plaintiff alleges

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the program was unlawfully intercepted and exhibited, is a limited

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liability company that is “subject to service of process in

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California and to the jurisdiction of this court.”

19

17.

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Answer are sufficient to give Plaintiff fair notice of the factual

21

basis for this affirmative defense under the plausibility standard

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set forth in Twombly and Iqbal, and under the lesser pleading

23

standard that governed in Wyshak.

Defendant has alleged, however, that West

Answer 7:15-

The Court determines that the allegations set forth in the

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C.

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Defendant’s second, third, fourth, fifth, seventh, ninth, and

Defenses That Deny Liability

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tenth affirmative defenses purport to deny liability or negate an

27

element that Plaintiff is required to prove.

28

defenses are not properly plead as affirmative defenses, but are
7

Such negative

1

merely denials of the allegations of the 1AC.

2

“‘[a]ffirmative defenses plead matters extraneous to the

3

plaintiff’s prima facie case, which deny plaintiff’s right to

4

recover, even if the allegations of the complaint are true.’”

5

J & J Sports Productions v. Gidha, 2012 WL 537494, at *3 (E.D.

6

Cal.) (quoting Federal Deposit Ins. Co. v. Main Hurdman, 655 F.

7

Supp. 259, 262 (E.D. Cal. 1987)) (formatting in original).

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contrast, denials of the allegations in the Complaint or

9

allegations that the Plaintiff cannot prove the elements of his

Proper

United States District Court
For the Northern District of California

10

claims are not affirmative defenses.”

11

Events, LLC v. Nguyen, 2010 WL 3749284, at *5 (N.D. Cal.)

12

“In

(quotation marks and citation omitted).

13

G & G Closed Circuit

The second affirmative defense alleges that Defendant “cannot

14

be held individually liable for actions, if any, of other

15

individuals without their consent or authorization, and defendant

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did not reap any commercial profit from any alleged violations.”

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Answer 4:8-13.

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stricken without leave to amend.

19

This defense merely denies liability and is

The third affirmative defense alleges that “plaintiff cannot

20

recover damages under either the first claim for violation of 47

21

U.S.C. § 605 and the second claim for violation of 47 U.S.C.

22

§ 553, on the one hand, and the conversion claim on the other.”

23

Answer 4:16-23.

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Plaintiff’s right to recover properly challenges the failure to

25

state a claim, which the Court has already determined in denying

26

Defendant’s Rule 12(b)(6) motion.

27

affirmative defense denies liability under claims plead in the

28

alternative and requires Plaintiff to elect a remedy, Plaintiff is

Defendant contends that this defense to

To the extent that the third

8

1

entitled in the pleadings to “state as many separate claims or

2

defenses as it has, regardless of consistency.”

3

8(d)(3).

4

amend.

Fed. R. Civ. P.

This defense is therefore stricken without leave to

5

Similarly, the fourth affirmative defense alleges that

6

“plaintiff cannot recover damages under both the first claim for

7

violation of 47 U.S.C. § 605 and the second claim for violation of

8

47 U.S.C. § 553.”

9

recover under both section 553 and section 605 for a single

Answer 4:24-28.

While Plaintiff may not

United States District Court
For the Northern District of California

10

violation, Plaintiff may state claims in the alternative pursuant

11

to Rule 8(d)(3).

12

4542962, at *2 (N.D. Cal.) (“A signal pirate violates section 553

13

if he intercepts a cable signal, he violates section 605 if he

14

intercepts a satellite broadcast.

15

single act of interception.”).

16

leave to amend.

17

See J & J Sports Productions v. Manzano, 2008 WL

But he cannot violate both by a

This defense is stricken without

The fifth affirmative defense alleges “there was no cable

18

system at the establishment identified in plaintiff[’]s Complaint

19

and therefore defendant cannot be liable as a matter of law for

20

violation of 47 U.S.C. § 553.”

21

liability under section 553 and is not properly asserted as an

22

affirmative defense.

23

Answer 5:1-7.

This defense denies

The seventh affirmative defense alleges that the complaint

24

“seeks excessive damages, which should be constrained by the ‘per

25

person’ valuation method and capped at $50.00 per person or a

26

similarly modest sum, or denied entirely.”

27

defense purports to deny liability for the damages sought by

28

Plaintiff and does not state an affirmative defense.
9

Answer 5:17-22.

This

1

Plaintiff argues that the ninth affirmative defense, which

2

alleges that “Plaintiff would be unjustly enriched by the relief

3

sought in the Complaint,” Answer 5:25-26, is insufficiently plead

4

because it makes only a conclusory allegation.

5

9.

6

defense is that the complaint seeks damages under all theories of

7

liability and that Plaintiff would be unjustly enriched if it were

8

awarded all the damages that it seeks.

9

As discussed above, however, Plaintiff is permitted to state

Docket No. 28 at

Defendant argues that the ground for the unjust enrichment

Docket No. 30 at 14 ¶ 9.

United States District Court
For the Northern District of California

10

claims in the alternative pursuant to Rule 8(d)(3).

11

Defendant does not state a sufficient basis to assert unjust

12

enrichment, the Court strikes Defendant’s ninth affirmative

13

defense without leave to amend.

14

Because

The tenth affirmative defense alleges that “an interest in

15

intangible personal property such as an exclusive license to

16

distribute a broadcast signal is not the proper subject of a claim

17

of conversion under California law.”

18

amounts to denial of liability for conversion and does not state

19

an affirmative defense.

20

Answer 6:1-8.

This defense

The Court grants the motion to strike these defenses without

21

leave to amend because they are not affirmative defenses that must

22

be plead.

23

asserting these allegations as ordinary denials and defenses to

24

liability.

The Court’s ruling does not preclude Defendant from

25

D.

26

Defendant’s sixth and thirteenth affirmative defenses are

27

Affirmative Defenses Insufficiently Plead

stricken because they fail to provide fair notice of the grounds

28
10

1

upon they rest under either the Twombly and Iqbal plausibility

2

standard or the lesser pleading standard that governed Wyshak.

3

The sixth affirmative defense alleges that “the damages of

4

plaintiff, if any, as alleged were not caused by the answering

5

defendant, but were the result of plaintiff’s own actions or

6

breaches, or the acts of third parties over which the answering

7

defendant had no control.”

8

that this defense negates the element of causation that Plaintiff

9

would be required to prove and is therefore improperly plead as an

Answer 5:10-14.

Plaintiff contends

United States District Court
For the Northern District of California

10

affirmative defense.

11

bear the burden to prove that a superseding act by a third party

12

caused Plaintiff’s damages, Defendant may assert this as an

13

affirmative defense but must plead sufficient factual allegations

14

to provide fair notice to Plaintiff.

15

at *2.

16

DirecTV as the basis for this affirmative defense, Docket No. 30

17

at 13 ¶ 6, but as currently plead, the sixth affirmative defense

18

does not sufficiently allege who, or what conduct, may have caused

19

Plaintiff’s damages.

20

Because there is insufficient information about the grounds for

21

this defense, it is insufficiently plead so as to provide fair

22

notice.

23

Docket No. 28 at 8.

Because Defendant would

See Nguyen, 2010 WL 3749284

Defendant alludes to his third-party complaint against

See Mendoza-Govan, 2011 WL 1544886 at *4.

This defense is therefore stricken with leave to amend.

Plaintiff argues that Defendant’s thirteenth affirmative

24

defense, which alleges that Plaintiff’s claims are barred by the

25

applicable statute of limitations, should be stricken.

26

above, Plaintiff filed the instant action on December 8, 2011.

27

Plaintiff alleges that the program was broadcast on December 11,

28

2010.

1AC ¶ 14.

As noted

Defendant has not alleged that the program was
11

1

televised on any earlier date.

2

the court must treat all well-pleaded facts as true.”

3

Promotions, Inc. v. Alvarado, 2011 WL 201466, *2 (E.D. Cal.) (in a

4

similar case, accepting as true the date that a program was

5

broadcast for the purposes of evaluating a statute of limitations

6

affirmative defense in a motion to strike, where the defendant had

7

not asserted a different date from the date plead by the

8

plaintiff).

9

47 U.S.C. § 605 is one year.

“In evaluating a motion to strike,
Joe Hand

The statute of limitations for claims arising under
DirecTV, Inc. v. Webb, 545 F.3d 837,

United States District Court
For the Northern District of California

10

847–48 (9th Cir. 2008).

11

under 47 U.S.C. § 553 is either one, two or three years.

12

J Sports Productions v. Soto, 2010 WL 3911467, at *1 (S.D. Cal.)

13

(citing Nat’l Satellite Sports, Inc. v. Time Warner Ent. Co., 255

14

F. Supp. 2d 307, 314 (S.D.N.Y. 2003); DirecTV, Inc. v. Johnson,

15

2004 WL 2011392 at *3 (N.D. Ill.)); Alvarado, 2011 WL 201466 at

16

*2.

17

is three years.

18

limitations for violations of the California Business and

19

Professions Code is four years.

20

Because Plaintiff initiated its lawsuit less than one year after

21

the alleged broadcast date of the program, the claims are timely

22

on the face of the allegations of the complaint.

23

The statute of limitations for claims
See J &

The statute of limitations for Plaintiff’s conversion claim
Cal. Code Civ. Proc. § 338(c).

The statute of

Cal. Bus. & Prof. Code § 17208.

Because Defendant has failed to allege an earlier date of

24

broadcast, he has failed to give Plaintiff notice of the grounds

25

for his statute of limitations defense.

26

strikes this affirmative defense.

27

affirmative defense only if he can truthfully allege that the

28

program was broadcast on a date before December 11, 2010.
12

Accordingly, the Court

Defendant may amend this

1

E.

Redundant, Immaterial, or Impertinent Affirmative
Defenses

2

Defendant’s eighth affirmative defense alleges in a
3
conclusory manner that “plaintiff has failed to mitigate damages.”
4
Answer 5:23-24.

Defendant argues that the factual basis for this

5
defense is that Plaintiff’s damages, including costs of
6
investigation and filing fees, could have been reduced or
7
eliminated if Plaintiff had joined West Coast Cigars, LLC as an
8
indispensable party, or had “communicated with its customers about
9
the existence of the purported licensing scheme.”

Docket No. 30

10
United States District Court
For the Northern District of California

at 14.

Even if the answer had included these additional

11
allegations, they do not support an affirmative defense to
12
liability.

Mitigation of damages is inapplicable to the types of

13
claims brought by Plaintiff in the instant action and thus this
14
defense is immaterial or impertinent.

See J & J Sports

15
Productions v. Coyne, 2011 WL 227670, at *2 (N.D. Cal.) (striking
16
this defense as irrelevant in a similar broadcast interception
17
case); G & G Closed Circuit Events, LLC v. Nguyen, 2010 WL
18
3749284, at *5 (N.D. Cal.) (same).
19
The eleventh affirmative defense, which alleges that
20
“defendant was not aware and had no reason to believe that his
21
acts constituted any violation of law,” does not state a valid
22
affirmative defense.

Answer 6:9-12.

This defense essentially

23
asserts “ignorance of the law,” which is not a defense to
24
liability.

“‘Ignorance of the law will not excuse any person,

25
either civilly or criminally.’”

Mendoza-Govan, 2011 WL 1544886 at

26
*6 (quoting Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich
27
LPA, 130 S.Ct. 1605, 1611 (2010)).
28
13

Defendant’s allegation that he

1

was “not aware” of the law is immaterial to liability and does not

2

state a defense.

3

Defendant’s twelfth affirmative defense “reserves all

4

defenses to be set forth in amended pleadings, and all claims to

5

be set forth in amended pleadings, pending investigation and

6

discovery.”

7

defenses for a future date is not a proper affirmative defense in

8

itself.

9

affirmative defenses, she must comply with Rule 15 of the Federal

Answer 6:15-19.

“An attempt to reserve affirmative

Instead, if at some later date defendant seeks to add

United States District Court
For the Northern District of California

10

Rules of Civil Procedure.”

11

(quoting Solis v. Zenith Capital, LLC, 2009 WL 1324051, at *7

12

(N.D. Cal.) (quotation marks omitted)).

13

to reserve future affirmative defenses is therefore redundant and

14

immaterial.

15

Mendoza-Govan, 2011 WL 1544886 at *7

This defense purporting

The fourteenth affirmative defense alleges as follows:

16

Defendant Bill Davis was sued individually and,
erroneously, as d/b/a West Coast Cigars. In fact,
West Coast Cigars is a limited liability company, and
Bill Davis is a member of the LLC. Defendant is a
member of the LLC, which protects him from individual
liability, and Plaintiff offers no facts which would
deprive Defendant of his protection thereby.

17
18
19
20

Answer 7:1-6.

21

fifteenth affirmative defense of failure to join West Coast

22

Cigars, LLC as a necessary party, the fourteenth affirmative

23

defense is stricken as redundant.

24

merely asserts the defense of failure to state a claim, it is

25

duplicative of the first affirmative defense and is stricken in

26

light of the Court’s ruling denying Defendant’s Rule 12(b)(6)

27

motion.

To the extent this defense is duplicative of the

28
14

To the extent that this defense

1
2

Accordingly, the Court strikes the eighth, eleventh, twelfth
and fourteenth affirmative defenses without leave to amend.

3
4

CONCLUSION
For the reasons set forth above, the Court DENIES the motion

5

to strike Defendant’s fifteenth affirmative defense; GRANTS

6

Plaintiff’s motion to strike without leave to amend as to

7

Defendant’s first through fifth, seventh through twelfth, and

8

fourteenth affirmative defenses; and GRANTS the motion to strike

9

Defendant’s sixth and thirteenth affirmative defenses with leave

United States District Court
For the Northern District of California

10

to amend.

11

deficiencies on which he is granted leave to amend, and must file

12

an amended answer within fourteen days of the date of this Order.

Defendant may amend the answer only to correct the

13
14

IT IS SO ORDERED.

15
16
17

Dated:

10/9/2012

CLAUDIA WILKEN
United States District Judge

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