Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.105.154

Filing 32

ORDER that the Recommendation of United States Magistrate Judge dated April 22, 2014 ECF No. 31 is AFFIRMED and ADOPTED. In accordance therewith, it is ORDERED that Plaintiffs Motion to Strike Defendants Affirmative Defenses filed March 11, 2014 ECF No. 23 is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to the first, second, fourth, fifth and tenth affirmative defenses, and these defenses are STRICKEN. It is DENIED as to the eighth affirmative defense (copyright misuse), by Judge Wiley Y. Daniel on 5/16/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-02781-WYD-MEH
MALIBU MEDIA, LLC,
Plaintiff,
v.
GREGORY YAMAGUCHI,
Defendant.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with “Plaintiff’s Motion to Strike
Defendant’s Affirmative Defenses” filed March 11, 2014. This motion was referred to
Magistrate Judge Hegarty for a recommendation. A Recommendation of United States
Magistrate Judge was issued on April 22, 2014, and is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Magistrate Judge Hegarty
recommends therein that Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses
be granted in part and denied in part. (Recommendation at 1, 6-7.)
More specifically, Magistrate Judge Hegarty notes that Plaintiff’s motion seeks to
strike Defendant’s first, second, fourth, fifth, eighth and tenth affirmative defenses.
(Recommendation at 4.) He further notes that Defendant does not oppose an order
striking his first (“failure to state a claim”), second (“no standing”), fourth (failure to timely
register) and fifth (“not real party in interest”) defenses, and Magistrate Judge Hegarty

“finds these defenses cannot succeed under any circumstance in this case”.
Accordingly, he recommends striking these defenses. (Id.) Magistrate Judge Hegarty
then turns to eighth defense titled “copyright misuse” and recommends that Plaintiff’s
motion to strike be denied as to this defense because, among other things, it is
sufficient under Fed. R. Civ. P. 8(b) and involves motive, which is generally reserved for
the factfinder. (Id. at 4-5.) He recommends, however, that the motion to strike be
granted as to the tenth defense titled “failure to mitigate damages” as the “Amended
Complaint requests only statutory damages and Defendant provides no authority for its
theory in this matter.” (Id. at 6.)
Magistrate Judge Hegarty advised the parties that written objections were due
within fourteen (14) days after service of the Recommendation. (Recommendation at 1
n. 1.) Despite this advisement, no objections were filed to the Recommendation. No
objections having been filed, I am vested with discretion to review the Recommendation
“under any standard [I] deem[] appropriate.” Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t
does not appear that Congress intended to require district court review of a magistrate's
factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings”). Nonetheless, though not required to do so, I review the
Recommendation to “satisfy [my]self that there is no clear error on the face of the
record.”1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.

1

Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard
of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I find the Recommendation is well reasoned and that is
rationale for granting in part and denying in part Plaintiff’s motion to strike is sound.
Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
April 22, 2014 (ECF No. 31) is AFFIRMED and ADOPTED. In accordance therewith, it
is
ORDERED that Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses filed
March 11, 2014 (ECF No. 23) is GRANTED IN PART AND DENIED IN PART. It is
GRANTED as to the first, second, fourth, fifth and tenth affirmative defenses, and these
defenses are STRICKEN. It is DENIED as to the eighth affirmative defense (copyright
misuse).
Dated: May 16, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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