MALIBU MEDIA, LLC v. JOHN DOE SUBSCRIBER ASSIGNED IP ADDRESS 69.142.20.239

Filing 22

MEMORANDUM OPINION filed. Signed by Magistrate Judge Douglas E. Arpert on 10/19/2015. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
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MALIBU MEDIA LLC,
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Plaintiff,
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Civil Action No. 14-5265 (FLW) (DEA)
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v.
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MEMORANDUM OPINION
JOHN DOE SUBSCRIBER
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ASSIGNED IP ADDRESS 69.142.20.239, :
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Defendants.
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ARPERT, Magistrate Judge.
This matter comes before the Court on a motion by Plaintiff, Malibu Media LLC
(“Plaintiff”), to strike Defendant’s affirmative defenses. For the reasons below, Plaintiff’s motion
is denied.
Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). Motions to strike, as a general matter, are highly disfavored.
Bristol-Myers Squibb Co. v. IVAX Corp., 77 F. Supp. 2d 606, 619 (D.N.J. 2000); J & A Realty v.
City of Asbury Park, 763 F. Supp. 85, 87 (D.N.J. 1991). As one commentator has noted, this is
“because of their somewhat dilatory and often harassing character.” 5C Wright & Miller, Fed.
Prac. & Proc. Civ. § 1381 (3d ed.). Nevertheless, an appropriate motion may “save time and
expense” by clearing away pleadings that “will not have any possible bearing on the outcome of
the litigation.” Garlanger v. Verbeke, 223 F. Supp. 2d 596, 609 (D.N.J. 2002).

“[T]he Third Circuit has instructed that a district court ‘should not grant a motion to
strike a defense unless the insufficiency of the defense is clearly apparent.’” Newborn Bros. Co.,
Inc. v. Albion Eng'g Co., 299 F.R.D. 90, 93 (D.N.J. 2014) (quoting Cipollone v. Liggett Group,
Inc., 789 F.2d 181, 188 (3d Cir. 1986)). An affirmative defense is insufficient if “it is not
recognized as a defense to the cause of action.” F.T.C. v. Hope Now Modifications, LLC, No. 091204, 2011 WL 883202, at *2 (D.N.J. 2011) (quoting Tonka Corp. v. Rose Art Indus., Inc., 836
F. Supp. 200, 217 (D.N.J.1993)). On the basis of the pleadings alone, “an affirmative defense
can be stricken only if the defense asserted could not possibly prevent recovery under any
pleaded or inferable set of facts.” Id.
A court has “considerable discretion” in deciding a Rule 12(f) motion. Jones v. United
States., No. 10-3502, 2012 WL 2340096, at *2 (D.N.J. June 18, 2012). A motion to strike
affirmative defenses will “usually will be denied unless the allegations have no possible relation
to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the
issues.” Tonka Corp., 836 F. Supp. at 217. Notably, “even where the challenged material is
redundant, immaterial, impertinent, or scandalous, a motion to strike should not be granted
unless the presence of the surplusage will prejudice the adverse party.” See Hope Now
Modifications, No. 09-1204, 2011 WL 883202, at *1.
Plaintiff challenges the following affirmative defenses: (1) failure to state a claim upon
which relief can be granted; (2) non-infringement; (3) infringement was not caused by a
volitional act attributable to Defendant; (4) failure to include indispensable party; (5) one
satisfaction rule; (6) unclean hands; (7) misuse of copyright; (8) unconstitutionally excessive
damages: (9) doctrine of de minimis non curat lex; (10) innocent infringement; (11) claims are
barred by the Digital Millennium Copyright Act; (12) waiver; (13) license, consent,

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acquiescence; (14) authorized use; (15) fair use; (16) failure to mitigate damages; and (17) the
alleged download never completed.
In its motion, Plaintiff goes through each defense individually, arguing that each should
be stricken. However, many of Plaintiff’s arguments focus largely on the merits of the defenses,
and not their sufficiency. For example, as to the First Affirmative Defense (failure to state a
claim), Plaintiff spends four pages of its brief arguing that its Complaint adequately states a
claim upon which relief can be granted. That is not, however, the question before the Court on
this motion. Rather, the Court must evaluate whether the defense is one that is recognized as a
defense to the cause of action and whether it can possibly prevent recovery under the facts pled.
The defense of “failure to state a claim upon which relief can be granted” certainly meets this
criteria. Another example is with respect to the Fourth Affirmative Defense (failure to join an
indispensable party); Plaintiff argues that there “has been no failure to join an indispensable
party” because any alleged joint tortfeasor is not indispensable. ECF No. 19-1 at 18-19.
Plaintiff similarly takes issue with the Twelfth Affirmative Defense (waiver), arguing that the
allegations with respect to the defense “are demonstrably false and made without any factual
basis.” Id. at 15. These arguments go to the merits of the defenses, not the sufficiency.
Furthermore, Plaintiff challenges a number of defenses as being inadequately pled.
However, Federal Rule of Civil Procedure 8(c) requires only that Defendant affirmatively state a
defense to the claims in the Complaint; the pleading standard set forth in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which requires a
party seeking relief to plead “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face,’” does not apply to affirmative defenses. See Hope Now

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Modifications, No. 09-1204, 2011 WL 883202, at *3. Thus, Plaintiff’s arguments in that regard
have no merit.
Finally, and perhaps most importantly, Plaintiff has not demonstrated that it will be
prejudiced if these affirmative defenses are not stricken. See Schwarzkopf Technologies Corp. v.
Ingersoll Cutting Tool Co., 820 F. Supp. 150, 154 (D. Del. 1992) (Even where a defense is
insufficient, redundant, immaterial, impertinent, or scandalous, a motion to strike is disfavored
unless the presence of that defense will prejudice the adverse party.); Hope Now Modifications,
No. 09-1204, 2011 WL 883202, at *1 (“[A] motion to strike should not be granted unless the
presence of the surplusage will prejudice the adverse party.”); see also Wright & Miller, supra
(“[E]ven when technically appropriate and well-founded, Rule 12(f) motions often are not
granted in the absence of a showing of prejudice to the moving party.”). While the parties in this
action will, of course, be entitled to seek discovery related to the affirmative defenses, none of
the affirmative defenses are so unrelated to the basic facts of the case that they would allow
Defendant to seek discovery beyond the scope of what is typically permitted.
In sum, the Court finds that Plaintiff has not established that the relief sought is
warranted. Plaintiff’s motion to strike Defendant’s affirmative defenses is denied. An
appropriate Order accompanies this Opinion.

/s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge

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