J&J Sports Productions, Inc. v. Vernancio et al

Filing 13

ORDER denying 10 Motion to Strike Affirmative Defenses. So Ordered by Chief Judge William E. Smith on 11/5/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
___________________________________
)
J & J SPORTS PRODUCTIONS, INC.,
)
Plaintiff,
)
)
v.
)
)
JOHN J. VERNANCIO, et al.,
)
Defendants.
)
___________________________________)

C.A. No. 18-239-WES

ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Plaintiff’s Motion to Strike Affirmative
Defenses (ECF No. 10) (“Plaintiff’s Motion”), to which Defendants
Responded (ECF No. 11) and Plaintiff Replied (ECF No. 12).

For the

reasons stated herein, Plaintiff’s Motion is denied.
I.

Factual Background
This

case

arises

out

of

Defendants’

allegedly

unlawful

broadcast of “‘The Fight of the Century’ Floyd Mayweather, Jr. v.
Manny Pacquiao Championship Fight Program,” (“the fight”) which was
broadcast live on Saturday May 2, 2015. According to the Complaint,
Plaintiff, a media production company, had the exclusive nationwide
commercial

distribution

rights

to

the

fight

and

entered

into

sublicensing agreements with various commercial entities allowing
them to broadcast the fight. Plaintiff alleges that Defendants, who
are owners of the commercial establishment called Broadway Cigars,
unlawfully broadcast the fight in their establishment. On May 1,

2018, Plaintiff filed a Complaint alleging two counts of commercial
piracy and one count of conversion. Defendants answered, denying
liability

and

asserting

three

affirmative

defenses:

(1)

that

“Plaintiff fails to state a cause of action upon which relief can
be granted”; (2) that “Defendants affirmatively assert the defenses
of license and payment”; and (3) that “Defendants affirmatively
assert the defense of waiver.” (Defs.’ Answer 3, ECF No. 6.)
Plaintiff now moves to strike the second and third affirmative
defenses.
II.

Applicable Law
Rule 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). “To

prevail on a motion to strike an affirmative defense, a plaintiff
must establish three criteria: (1) there is no question of fact
which might allow the defense to succeed; (2) there is no question
of law which might allow the defense to succeed; and (3) the
plaintiff would be prejudiced by inclusion of the defense.” United
States v. Kennebec Scrap Iron, Inc., No. 1:16-CV-191-GZS, 2016 WL
6651302, at *2 n.2 (D. Me. Nov. 10, 2016) Elliot v. City of New
York, No. 06-CV-296 (KMK), 2008 WL 4178187, at *15 (S.D.N.Y. Sept.
8, 2008).

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III. Analysis
The

crux

of

Plaintiff’s

argument

is

that

Defendants’

affirmative defenses are not, in fact, affirmative defenses; they
are merely denials of liability.

(Pl.’s Reply 3 (“A denial is just

that, a denial, it is not an affirmative defense.”).)

Plaintiff

argues that an affirmative defense must assume that the allegations
in the Complaint are true and cannot contradict the Complaint.
(Pl.’s Mot. to Strike 3 (stating that affirmative defenses “plead
matters extraneous to the plaintiff’s prima facie case, which deny
plaintiff’s right to recover,

even if the allegations of the

complaint are true”) (quoting Fed. Deposit Ins. Corp. v. Main
Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987) (emphasis added by
Plaintiff).) Plaintiff contends that the affirmative defense of
license and payment must be stricken because it directly contradicts
Plaintiff’s allegation that “Defendants were not sublicensees and
did not contract with Plaintiff.” (Id. at 4; see also Compl. ¶¶ 1619, ECF No. 1.)

Similarly, Plaintiff argues that the affirmative

defense of waiver must be stricken because Defendants did not plead
sufficient facts to support that defense.

Both arguments fail.

First, by asserting the affirmative defense of “license and
payment” Defendants presumably meant to claim that they had properly
obtained a license and paid for the use of Plaintiff’s media content
before they broadcast the fight on May 2, 2015.

This defense

presents questions of fact and law for the Court to resolve, namely:
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whether Defendants possessed a license to broadcast the media, what
was the scope of that license, and whether Defendants’ actions were
within that scope.

Additionally, because this is a “commercial

piracy case arising out of the alleged unlawful interception,
publication, and/or receipt of [the fight]” (Pl.’s Mot. to Strike
2), the affirmative defense of “license and payment” appears to go
to the heart of the ultimate issue of whether Defendants’ broadcast
was lawful. Clearly the issues raised by this defense are integral
to the case and, as such, the argument that inclusion of this
defense would prejudice Plaintiff by forcing it to “litigat[e]
irrelevant issues” is baseless (Id. at 5); see also Kennebec Scrap
Iron, Inc., 2016 WL 6651302, at *3 (“At this early stage of the
proceeding . . . the Court does not believe that the Government
will be prejudiced by having to engage in discovery and further
argument on issues that will be central to proving its claims . .
. .”).
Second, Plaintiff’s argument that Defendants have not pleaded
sufficient facts to “indicate that the defense [of waiver] can
succeed factually or legally” misses the point. (Pl.’s Mot. to
Strike 5.) Defendants are not obliged at this stage to prove the
plausibility of their affirmative defenses. Owen v. Amer. Shipyard
Co., LLC, No. 15-CV-413 S, 2016 WL 1465348 at *3 (D.R.I. April 14,
2016) (declining to extend the Twombly and Iqbal pleading standards
to affirmative defenses).

Rather, it is Plaintiff who bears the
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burden of proving beyond cavil that these affirmative defenses are
insufficient and must be stricken. See Kennebec Scrap Iron, Inc.,
2016 WL 6651302, at *2 (stating that plaintiff bears the burden of
proof on a

motion to strike affirmative defenses); Honeywell

Consumer Prods., Inc. v. Windmere Corp., 993 F. Supp. 22, 24 (D.
Mass. 1998) (“Motions to strike defenses are disfavored and should
be granted only when it is beyond cavil that the defendants could
not prevail on them.”) (quotations omitted).
Accordingly, Plaintiff has not met its burden of demonstrating
that there is no issue of law or fact which might allow these
defenses to succeed, nor has it shown how it would be prejudiced by
the inclusion of these defenses. See Kennebec Scrap Iron, Inc.,
2016 WL 6651302, at *3.
IV.

Conclusion
For the aforementioned reasons, Plaintiff’s Motion to Strike

Affirmative Defenses (ECF No. 10) is DENIED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: November 5, 2018

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