FERRELLGAS, L.P. et al v. BEST CHOICE PRODUCTS
Filing
24
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER ON 08/30/2016. Plaintiff's motion 18 is GRANTED. Defendant's Fourth, Fifth, Sixth, and Seventh Affirmative Defenses are STRICKEN. Defendant shall be permitted to amend its answer if leave is sought within fourteen days of this Order. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
FERRELLGAS, L.P. et al.,
Plaintiffs,
V.
BEST CHOICE PRODUCTS a/k/a
SKY BILLIARDS, INC.,
Defendant.
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1,:1,6CY259
MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE TUDGE
This mattet is before the Cout upon Plaintiffs Fettellgas, L.P. ("Fertellgas") and Blue
Rhino Global Sourcing, Inc.'s ("Blue Rhino") Motion to Strike Afftmative Defenses ftom
Defendant Best Choice Products' (a/k/a Sky Billiards, Inc.) Vedfied Answet. (Docket Entty
18.) Defendant has not filed a response. Fot the following reasons, the Court will gtant
Plaintiffs'motion and stdke Defendant's fourth, fifth, sixth, and seventh affirmative defenses
from its verified answer.
I.
BACKGROUND
Plaintiffs filed this action alleging that Defendant, without authorizatllon, marketed,
offered for sale, and sold outdoor fteplaces that wete designed and manufactuted for Blue
Rhino at a significantly lowet r^te thaln Plaintiffs' listing pdce.
Er,tty 1.) Ferrellgas,
(Id.In
1,0, 1.2.)
^
(Jaa
Compl.
llI
16-20, Docket
ptemier propane provider, is the owner of the Blue Rhino trademark.
Blue Rhino, a subsidiary of Ferellgas, distributes outdoor living accessories,
including fteplaces and heaters. (Id.I 11.) Defendant is engaged in the business of impoting,
1
matketing and selling household items, including outdoor fteplaces. (Id. n 1,5.) Plaintiffs
allege that Defendant is marketing and selling its fheplaces, pârticulady the UniFlame Hex
Shaped Outdoor Fire Bowl, thtough online tetailers and includes an Owner's Manual that
"falsely suggest that Hex Fiteplaces sold by Defendant otiginated ftom Blue Rhino." (Id.n
21;
see
also id.1i1[ 16,
20.) As a tesult, Plaintiffs contend that Blue Rhino's name, reputation,
and goodwill ate suffedng; thus, Plaintiffs seek damages
fot tadematk infringement, unfair
competition, and unfait and deceptive trade practices. (1d.111,36-53.)
Defendant filed its verified answet on Apdl 26, 201,6, asserting several afñtmanve
defenses
in this action, including:
FOURTH AFFIRMATIVE DEFENSE
Defendantfi allegefs] Plaintiffs chims in the Complaint are barred by the
doctine of equitable estoppel in whole or in part.
Defendant[] allegefs] Plaintiffs claims in the Complaint ate batred by the
doctrine of waivet in whole or in pat.
SIXTH AFFIRMATIVE DEFENSE
Defendant[] ailege[s] Plaintifls claims in the Complaint are barred by
Plaintiffs consent or acquiescence.
SEVENTH AFFIRMATIVE DEFENSB
Defendantfl allegefs] Plaintiffs claims in the Complaint are baned by the
docttine of laches in whole or in part.
pef.
Answer, Docket Errtty 1,6 at 6-7.) Plaintiffs filed the pending motion, seeking to sffike
the above afftmative defenses because "Defendant failfed] to allege a single fact to support
any
of the afîttmative defenses." (Pls.' Mem., Docket E.ttry 19 at3.) Defendant
a response
to this motion.
2
has
not filed
II.
DISCUSSION
Pursuant to Rule 12(\ of the Fedetal Rules of Civil Ptocedure, a court can "strike from
a pleading an insufficient defense or any tedundant, immaterial, impertinent, or scandalous
m^tter" on its own or on motion of a parq. Fed. R. Civ. P. 12(Ð; ll/a¡te Mgrut. Holdingt, Inc.
u.
Gilnore,252F.3d 31,6,347 (4th Cir. 2001). In teviewing a motion to stdke pursuant to Rule
1,2(f), the
Gaessþrd
Cout reviews "the pleading undet attack in a light most favotable to the pleader."
u.
Pa.
Nøll Mat.
Ca¡. Ins. C0.,918 F. S.rpp.
2d453,467 (À4.D.N.C.201,3). "The Fouith
Citcuit has recognized tbat Rule 12(f) motions are geîerz'lly viewed with disfavot because
striking a pottion of a pleading is a drastic remedy." Id, (cítattons and quotations omitted).
Howevet, "a defense that might confuse the issues in the case and would not, under the facts
alleged, constitute a valid defense
^t
to the action can and should be deleted." Gilmore,252F3d
347 (intetnal quotations and citations omitted).
"A
party moving
to strike a defense
pursuânt to Rule 12(f) must make a showing of prejudice." Staton u. N. Søn Arceptance, I-I,C,
No.
1:1
3-CV -27 7, 201,3 WL 39
!Øhen
a,
1,01,
53, at x2 G\,{.D.N.C. July 29, 201.3).
p^tty pleads an af.firmative defense, "Federal Rule of Civil Procedure
8(c),
which specifically governs aflumative defenses, requires a p^rty to 'affrmatively state any
avoidance
or affirmative defense."' Caerþrd,918 F. S,rpp. 2d at 468 (citing tred. R. Civ. P.
8(.)). Additionally, "the majotity of pourth Citcuit] disttict coutts have concluded that
particularity and plausibility standard from lqbal/Twonbþ does apply
aflnmalìve defenses." Staton, 201,3 WL 391,01,53, at *2 (cittne cases);
the
to the pleading of
see al¡o
Ashroft
u. Iqbal,
556 U.S. 662 Q009); BellAtlantic Corþ. u. Twonbþ,550 U.S. 544 Q007). However, "coutts in
the Middle District have declined to extend Twombþ and lqbal
J
to afîtmative
defenses given
the language of Rule 8 of the Fedetal Rules of Civil Procedute and existing Foutth Circuit
authotity."
Orshal u. Bod1nte Therrzal Procetsing 1øa.,
(Ì\4.D.N.C. July 26,2016);
see
No. 1:15CY67 4, 201,6 IØL 40076L0, at *2
al¡o Gøessford,918 F. Srrpp. 2d
at 468. Thus, "as long as the
afñrmaave defense gives the piaintiff fait notice of the nature of the defense, then it will be
sufficient." Keith Burcch Associate¡ LLC u.I-ø-Z-Bo11zr., No. 1:14-CV-850,201.5
at x2 (X4.D.N.C. July 9, 2015) (citing Clen u, Corbeaø,98 F. ,A.pp'x
Villa
u.
AlþFin.,Iøc., No. 1:13CY953,201,4
survive a motion
ìfL
197
ìfL
4158760,
, 203 (4th Cu. 200Q);
800450,at*2 (N{.D.N.C. Feb. 28, 2014)
to strike, a defendant must offer more than a bare-bones
("fllo
conclusory
allegation which simply names alegal theory but does not indicate how the theory is connected
to the case at hand.") (internal quotations and citations omitted). Deciding whether to grant
ot deny
a
motion to strike is discretionary.
Renaissance GreetingCards, Inc. a.
DollarTree
Stores,
lnc.,227 F. App'x 239,246 (4th Cir. 2007),
Having reviewed Plaintiffs' argument, the Court finds that Defendant's fourth, fifth,
sixth and seventh defenses are deficient because they are nothing more than bare-bone
conclusory statements without supporting facts to give fair notice to Plaintiff as to the basis
of such defenses.
(D. Md. July
27
Topline Soh., Inc. u. Sandler 51s, 1ør:,
,201,0) ("[E]ven befote Tworzbþ and Iqbal, the defenses of waiver, estoppel and
laches wete consistently
a.
No. L-09-3102,201,0 V/L 2998836, at*2
Mex-Am Cafe,
stuck when pled without reference to some facts."); see a/so EspinoTa
II,C, No.
1:14CV30, 201,5 WL 5431,949, at *6 (A{.D.N.C. Sept. 15, 2015)
(finding two of defendants' af.îrmattve defenses "insufficient irtespective of the application
of Twombþ
and lqbal because they do nothing more than state a legal theory without any
indication of the relevance of those defenses to Plaintiffs'claims"); Vilk,201,4WL 800450, at
4
*3 ("[S]imply asserting that the equitable doctrine of laches bars the Complaint does not
connect the theory to the instant case and, thus, does not provide Plaintiff with sufficient
notice of the defense under Rule 8."); Moomacer,Inc. u. Collary' No. 5:13-CY-455-BO, 2013WL
5949863, at x3 (E,.D.N.C. Nov. 6, 2013) (granting
in part plaintiff motion to strike sevetal
"affttrrrald,ve defenses by defendant [thât] contain no more than labels and conclusions ot have
no basis in law"). Because "dismissal under Rule 12(f) is apptopriate whete the defendant has
not articulated its defenses so that they ate contextually comptehensible[,]" Plaintiffs' motion
will be granted. Vi/|a,2014WI- 800450, atx2 (cittng
of Johnston,
O@sse1
Imaging
LLC a. Cardiology As¡ocl
LLC,752 F.Supp.2d721.,726 ffl.D.Va. 2010)). However,
because motions to
strike aïe genetz,lly disfavored, Defendant, upon an appropdate motion, will be affotded an
opportunity to amend its answet. Molnracer,201,3 WL 5949863, at *3 ("[B]ecause motions to
strike are so disfavored, leave shall be given upon an apptopriate motion for leave to file [an]
amended answef".).
III.
CONCLUSION
Fot the reasons stated hetein,
IT IS HEREBY ORDERED that Plaintiffs' motion (Docket Entry
18)
GRANTED. Defendant's Fourth, Fifth, Sixth, and Seventh Affumative Defenses
is
are
STRICKEN. Defendant shall be permitted to amend its answet if leave is sought within
fourteen (14) days of this Order,
l7ebstet
United t^ tes Magistrate Judge
August 30,201.6
Durham, Notth Carolina
5
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