Joe Hand Promotions, Inc. v. HRA Zone, L.L.C. et al
Filing
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REPORT AND RECOMMENDATIONS re 11 Motion to Strike filed by Joe Hand Promotions, Inc. Signed by Judge Andrew W. Austin. (jk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOE HAND PROMOTIONS, INC.
V.
HRA ZONE, L.L.C., D/B/A THE ZONE
AT SAN MARCOS AND HORIZON
REALTY ADVISORS, L.L.C., D/B/A
THE ZONE AT SAN MARCOS
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A-13-CA-359 LY
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Plaintiff’s Motion to Strike Defendants’ Affirmative Defenses,
pursuant to Federal Rule of Civil Procedure 12(f) (Dkt. No. 11); Defendants’ Response (Dkt. No.
16) and Plaintiff’s Reply (Dkt. No. 17). The undersigned submits this Report and Recommendation
to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of
the Local Court Rules of the United States District Court for the Western District of Texas, Local
Rules for the Assignment of Duties to United States Magistrate Judges.
I.
GENERAL BACKGROUND
Plaintiff Joe Hand Promotions, Inc. (“Plaintiff”) alleges that it was granted exclusive
nationwide commercial distribution rights to the “UFC 119: Mir v. Cro Cop” broadcast, scheduled
for September 25, 2010, (the “Broadcast”). Pursuant to the contract granting Plaintiff distribution
rights to the Broadcast, Plaintiff entered into sub-licensing agreements with various commercial
establishments to permit the public exhibition of the Broadcast. Plaintiffs allege that, without its
authorization, Defendants HRA Zone, L.L.C., d/b/a The Zone at San Marcos and Horizon Realty
Advisors, L.L.C., d/b/a The Zone at San Marcos (“Defendants”) unlawfully intercepted and exhibited
the Broadcast at the commercial establishment know as “The Zone at San Marcos,” located in San
Marcos, Texas. As a result of Defendants’ alleged unlawful actions, Plaintiff filed this lawsuit
against Defendants on May 1, 2013, alleging causes of action under 47 U.S.C. § 605(a) (the “Piracy
Statute”) and 47 U.S.C. § 553 (prohibiting unauthorized communications over a cable system), as
well as a cause of action for conversion.
On May 30, 2013, Defendants filed their Answer to the Complaint and asserted several
affirmative defenses, including failure to state a claim on which relief can be granted, estoppel,
waiver, laches, defect of the parties, failure to name a indispensable party, failure to mitigate
damages, and that the damages were caused by one or more third parties. See Defendant’s Answer
at p.3-4 (Dkt. # 4).
II. ANALYSIS
Plaintiff argues that all of Defendants’ affirmative defenses are “devoid of any factual
support” and should therefore be stricken under Rule 12(f). Plaintiff’s Motion to Strike at p. 5.
A.
Standard for Rules 12(f) and 8(c)
Federal Rule of Civil Procedure 12(f) allows the court to strike “from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED . R. CIV .
P. 12(f). “Both because striking a portion of a pleading is a drastic remedy, and because it is often
sought by the movant as a dilatory tactic, motions under Rule 12(f) are viewed with disfavor and are
infrequently granted.” FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex. 1993) (citing Augustus v.
Bd. of Pub. Instr. of Escambia County, Florida, 306 F.2d 862, 868 (5th Cir. 1962), and 5A CHARLES
A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1380). Motions to strike
“should be granted only when the pleading to be stricken has no possible relation to the controversy.”
Augustus, 306 F.2d at 868 (quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d
819, 822 (6th Cir. 1953)).
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When a motion to strike is premised on the “insufficiency” of a defense, a movant must
demonstrate that the defense is insufficient as a matter of law. EEOC v. Courtesy Bldg. Servs., Inc.,
2011 WL 208408, at *1 (N.D. Tex. Jan.21, 2011) (citing Kaiser Aluminum & Chem. Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982), cert. denied, 459 U.S. 1105(1983)).
A motion to strike should be denied if there is any disputed question of fact. Augustus, 306 F.2d at
868. Even when dealing with a pure question of legal sufficiency, courts are still “very reluctant”
to determine such issues on a motion to strike, instead viewing such questions “as best determined
only after further development by way of discovery and a hearing on the merits, either on a summary
judgment motion or at trial.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1381 (3d ed. 2004). The trial court has “ample” discretion when considering a Rule
12(f) motion. In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1168 (5th Cir. 1979).
Rule 8(c) requires a defendant to “plead an affirmative defense with enough specificity or
factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.”
Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). The “fair notice” pleading requirement
is met “if the defendant sufficiently articulated the defense so that the plaintiff was not a victim of
unfair surprise.” Id. (internal quotations and citations omitted); see also, Ingraham v. United States,
808 F.2d 1075, 1079 (5th Cir. 1987). However, where the affirmative defense is raised in a manner
that does not result in unfair surprise, “technical failure to comply precisely with Rule 8(c) is not
fatal.” Rogers v. Mc Dorman, 521 F.3d 381, 385 (5th Cir. 2008) (citing Allied Chem. Corp. v.
Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)). Thus, a defendant does not waive an affirmative
defense “if it is raised at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its
ability to respond.” Id. (internal quotations and citations omitted). In some cases, “merely pleading
the name of the affirmative defense . . . may be sufficient.” Woodfield, 193 F.3d at 362.
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Among the district courts in this Circuit, there has been some disagreement on whether the
Supreme Court’s opinions in Twombly and Iqbal have application to affirmative defenses. Compare
Thomson v. Law Office of Joseph Onwuteaka, PC., 2013 WL 4787777, at *1 n.1 (S.D. Tex. Sept.
9, 2013) (noting that Fifth Circuit has not addressed the issue but declining to apply the
Twombly/Iqbal standard to affirmative defenses); Jones v. JGC Dallas LLC, 2012 WL 4119570, at
*5 (N.D. Tex. Aug. 17, 2012) (“The plausibility standard in Twombly and Iqbal does not appear
applicable to the pleading of an affirmative defense.”), with Vargas v. HWC General Maintenance,
2012 WL 948892, at *2 (S.D. Tex. March 20, 2012) (“This Court also agrees that the plausibility
standard articulated in Twombly and Iqbal applies to the sufficiency of affirmative defenses.”).1 The
Fifth Circuit has not yet specifically addressed whether Twombly and Iqbal have changed the
pleading standard for affirmative defenses. However, in Rogers v. McDorman, 521 F.3d 381, 385-86
(5th Cir. 2008), decided after Twombly but before Iqbal, the Fifth Circuit relied on the Woodfield
“fair notice” standard to find that the defendants’ affirmative defense of in pari delicto was not
waived where it was raised at a “pragmatically sufficient time” and plaintiffs could not “credibly
claim they were surprised.” Based on Rogers, the Court concludes that “Woodfield is still applicable
to motions to strike affirmative defenses.,” and will therefore apply the Woodfield standard in
reviewing the motion to strike. Jolie Design & Decor, Inc. v. Cece Caldwell’s Paints, LLC, 2013
WL 3293691, *4 (E.D. La. June 28, 2013).
B.
Should Defendants’ Affirmative Defenses be stricken?
Applying these standards, Plaintiff’s Motion to Strike should be denied. Plaintiff has failed
to demonstrate that Defendants’ affirmative defenses have “no possible relation to the controversy”
at issue in this case. See Augustus, 306 F.2d at 868. Moreover, there are numerous fact issues which
1
For a more detailed discussion on whether the pleading standard articulated in Twombly and
Iqbal apply to affirmative defenses, see 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1274 (2013 Supp.).
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would preclude granting a motion to strike. Id. The motion is also premature, given the early stage
of this litigation. The Court finds that whether Defendants’ affirmative defenses are meritorious
should be determined after discovery is conducted in this case and should be addressed in a summary
judgment motion, rather than in a motion to strike. See Order, Joe Hand Promotions, Inc. v. Fat
Thompson’s L.L.C., A-11-CV-865 SS (W.D. Tex. Jan. 10, 2012) (denying motion to strike because
determining whether affirmative defense is adequate must be determined by summary judgment
rather than motion to strike). Accordingly, Plaintiff’s Motion to Strike should be denied in its
entirety.
III. RECOMMENDATION
Based upon the foregoing, the Magistrate Court RECOMMENDS that the District Court
DENY Plaintiff Joe Hand Promotions, Inc.’s Motion to Strike Defendants’ Affirmative Defenses
(Dkt. No. 11).
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
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472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 18th day of October, 2013.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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