Joe Hand Promotions Inc v. Nguyen

Filing 23

ORDER by Judge Whyte granting in part and denying in part 13 Motion to Strike.(rmwlc1, COURT STAFF) (Filed on 4/6/2012)

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E-FILED on

4/6/2012

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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JOE HAND PROMOTIONS, INC.,

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No. 11-CV-04745 RMW

Plaintiff,
v.
AIMEE NGUYEN, individually and d/b/a XA
LANG,

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION
TO STRIKE DEFENDANT'S ANSWER
[Re Docket No. 13]

Defendant.
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Plaintiff Joe Hand Promotions, Inc. moves to strike all sixteen affirmative defenses asserted
by defendant Aimie Nguyen in her Answer to plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(f).
Defendant opposes the motion. The court has read the moving and opposing briefs and considered
the arguments of counsel. For the reasons set forth below, the court grants in part and denies in part
plaintiff's motion to strike.
I. BACKGROUND
Plaintiff Joe Hand Promotions, Inc. owns exclusive commercial distribution rights to
Ultimate Fighting Championship 119: Frank Mir v. Mirko Cro Cop (the "program"). Compl. ¶ 9. On
September 23, 2011, plaintiff filed this action against defendant Aimie Nguyen individually and dba
Xa Lang, alleging that defendant unlawfully intercepted or displayed the program at her commercial

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER—No.
11-CV-04745 RMW
CVH

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establishment in San Jose, California. Compl. ¶ 12. The complaint alleges violations of the

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Communications Act of 1934, 47 U.S.C. § 605; the Cable & Television Protection and Competition

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Act of 1992, 47 U.S.C. § 553; and California's Unfair Competition Law ("UCL"), Cal. Bus. & Profs.

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Code § 17200 et seq., as well as a cause of action for conversion. See Compl. ¶¶ 8, 18, 23, 27.

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On February 9, 2012, defendant filed an answer to the complaint asserting sixteen

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affirmative defenses. See Dkt. No. 11. On February 29, 2012, plaintiff filed a Motion to Strike the

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Affirmative Defenses pled in the answer. See Dkt. No. 13. Defendant filed a written opposition on

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March 14, 2012. See Dkt. No. 15. Plaintiff filed its reply on March 20, 2012. See Dkt. No. 16.

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Defendant pleads the following affirmative defenses in her answer: (1) the Akien exception,

United States District Court
For the Northern District of California

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(2) permissible secondary transmission, (3) lawful use, (4) fair use of copyrighted work, (5)

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untimely copyright registration, (6) improper claim for conversion, (7) failure to state a cause of

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action, (8) lack of subject matter jurisdiction, (9) waiver, (10) estoppel, (11) undue hardship, (12)

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undue penalty, (13) unjust enrichment, (14) cumulative and duplicative claims, (15) adequate

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remedy at law, (16) no violation of 17 U.S.C. § 106.

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II. DISCUSSION

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A.

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Rule 12(f) states that "the court may order stricken from any pleading any insufficient

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Legal Standard

defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).
Rule 8(b) provides that "[a] party shall state in short and plain terms the party's defenses."

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Fed. R. Civ. P. 8(b). However, an affirmative defense must still give the plaintiffs "'fair notice' of the

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basis of the defense" and may be stricken if it fails to do so. Qarbon.com Inc. v. eHelp Corp., 315 F.

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Supp. 2d 1046, 1048 (N.D. Cal. 2004). An affirmative defense is "a defendant's assertion of facts

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and arguments that, if true, will defeat the plaintiff's . . . claim, even if all the allegations in the

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complaint are true." Black's Law Dictionary (8th ed. 2004).

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When ruling on a motion to strike, the court must view the pleading in question in the light

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most favorable to the non-moving party. In re Facebook PPC Adver. Litig., 709 F. Supp. 2d 762,

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772 (N.D. Cal. 2010). When that non-moving party is proceeding pro se, the pleading in question

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should be construed even more liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER—No.
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CVH
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However, pro see litigants are still required to adhere to the rules of procedure. Ghazali v. Moran, 46

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F.3d 52, 54 (9th Cir. 1995). Accordingly, the court considers plaintiff’s motion under generally

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applicable standards, while liberally construing defendant’s affirmative defenses.

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B.

Defenses That Are Not Affirmative Defenses

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The following defenses are stricken because they are not affirmative defenses to plaintiff's

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claims: (6) improper claim for conversion, (7) failure to state a cause of action, (8) lack of subject

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matter jurisdiction, and (16) no violation of 17 U.S.C. § 106. Rather than affirmative defenses, these

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defenses allege defects in plaintiff's claims and raise issues that are plaintiff's burden to prove.

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Moreover, the argument of affirmative defense (6) fails to stand as numerous federal courts in

United States District Court
For the Northern District of California

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California have awarded conversion damages in cases filed by the very plaintiff to the instant action.

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See Joe Hand Promotions v. Be, No. 11-01333, 2011 WL 5105375 (N.D. Cal. Oct. 26, 2011); see

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also Joe Hand Promotions v. Burleson, No. 11-00499, 2011 WL 4905631 (E.D. Cal. Oct. 14, 2011).

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Accordingly, affirmative defenses (6), (7), (8), and (16) are stricken without leave to amend.

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C.

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"The key to determining the sufficiency of pleading an affirmative defense is whether it

Defenses Insufficiently Pled

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gives plaintiff fair notice of the defense." J & J Sports Productions, Inc. v. Montanez, No. 10-cv-

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01693, 2010 WL 5279907, at *2 (E.D. Cal. Dec. 13, 2010) (quoting Wyshak v. City Nat’l Bank, 607

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F.2d 824, 827 (9th Cir. 1979)). "The fair notice pleading requirement is met if the defendant

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sufficiently articulated the defense so that the plaintiff was not a victim of unfair surprise."

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Montanez, 2010 WL 5279907, at *2 (quoting Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir.

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1999)).

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Here, affirmative defenses (3), (4), (9), (10), (11), (12), (13) and (15) are stricken because

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they are wholly insufficient in providing plaintiff adequate notice of the facts supporting the defense.

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They are mere legal conclusions that fail to give plaintiff, or the court, any factual support to

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determine the applicability of such defenses. See Montanez, 2010 WL 5279907, at *3 (striking

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affirmative defenses as insufficient when not plead with supporting facts). For example, defendant

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states that "some or all of the claims for damages in the Complaint are barred because Plaintiff

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waived those claims." See Dkt. No. 11. Defendant however offers no insight into what conduct by
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER—No.
11-CV-04745 RMW
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plaintiff constituted waiver, when such waiver occurred, or even what claims plaintiff waived., the

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court strikes these defenses with leave to amend. Any amended answer should put forth sufficient

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legal defenses supported by specific factual allegations.

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D.

Copyright Related Defenses

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The following affirmative defenses are also stricken: (1) the Akien exception, (2) permissible

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secondary transmission, and (5) untimely copyright registration. Although defendant states that

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"courts have construed sections 47 U.S.C. §§ 605 and 553 within the boundaries of the copyright

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statute," Dkt. No. 11, her copyright defenses are inapplicable to the instant action because plaintiff's

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claims are not brought under copyright law. Moreover, defendant's reliance on J & J Sports

United States District Court
For the Northern District of California

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Productions, Inc. v. Soto, 10-CV-885, 2010 WL 3911467 (S.D. Cal. Sep. 28, 2010) is misguided as

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that case does not hold that 47 U.S.C. §§ 605 and 553 are within the copyright statute. Lastly,

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defendant has not sufficiently demonstrated that the aforementioned defenses could even apply to 47

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U.S.C. §§ 605 and 553. Accordingly, the court strikes these affirmative defenses without leave to

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amend.

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E.

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The court denies plaintiff's motion to strike affirmative defense (14). Several courts have

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denied recovery for conversion damages as "cumulative" where statutory damages were already

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awarded. DirecTV, Inc. v. Pahnke, 405 F. Supp. 2d 1182, 1193, (E.D. Cal. 2005) (having already

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awarded statutory damages under § 605, the court denied plaintiff's additional request for conversion

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damages as "cumulative and excessive"); see also Kingvision Pay-Per-View v. Guzman, No. 09-

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00217, 2009 WL 1475722, at *3 (N.D. Cal. May 27, 2009) (granting default judgment and statutory

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damages under § 605, while dismissing § 553 and conversion claims). Defendant's defense here

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could possibly reduce or negate her liability under certain of plaintiff's claims, and as such the court

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views this affirmative defense as sufficient.

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Cumulative and Duplicative Claim Defense

III. ORDER

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For the foregoing reasons, the court grants in part and denies in part plaintiff's motion to

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strike affirmative defenses. All defenses are stricken with the exception of (14) cumulative and

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duplicative claim. Defenses (1) the Akien exception, (2) permissible secondary transmission, (5)
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER—No.
11-CV-04745 RMW
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untimely copyright registration, (6) improper claim for conversion, (7) failure to state a claim, (8)

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lack of subject matter jurisdiction, and (16) no violation of 17 U.S.C. § 106 are stricken without

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leave to amend. Defenses (3) lawful use, (4) fair use of copyrighted work, (9) waiver, (10) estoppel,

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(11) undue hardship, (12) undue penalty, (13) unjust enrichment, and (15) adequate remedy at law

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are stricken with leave to amend. Defendant has twenty days from the date of this order to file an

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amended answer properly asserting any applicable affirmative defenses and the factual or legal basis

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for each.

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United States District Court
For the Northern District of California

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DATED:

April 6, 2012
RONALD M. WHYTE
United States District Judge

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S ANSWER—No.
11-CV-04745 RMW
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