Case 1:12-cv-01509-AWI-SKO Document 16 Filed 02/26/13 Page 1 of 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 J & J SPORTS PRODUCTIONS, INC., CASE NO. 1:12-cv-01509-AWI-SKO 12 ORDER GRANTING PLAINTIFF'S Plaintiff, MOTION TO STRIKE 13 DEFENDANT'S FIRST AMENDED v. ANSWER 14 (Doc. 10) 15 RONALD DEAN BEAR, individually and dba BEAR'S DEN SPORTS BAR AND ORDER GRANTING IN PART AND 16 DELI, DENYING IN PART PLAINTIFF'S MOTION TO STRIKE 17 Defendant. DEFENDANT'S AFFIRMATIVE DEFENSES 18 (Docs. 7) 19 / 20 I. INTRODUCTION 21 On November 19, 2010, Plaintiff J & J Sports Productions, Inc. ("Plaintiff") filed a 22 complaint against Defendant Ronald Dean Bear, individually and dba Bear's Den Sports Bar and Deli 23 ("Defendant"), alleging violations of 47 U.S.C. §§ 553 and 605, as well as causes of action for 24 conversion and for violation of the California Business and Professions Code section 17200, et. seq. 25 The suit is based on Defendant's alleged unlawful interception, receipt, and exhibition of "Star 26 Power,": Floyd Mayweather, Jr. v. Victor Ortiz Championship Fight Program (the "Program"), a 27 fighting match that was broadcast on Saturday, September 17, 2011. (Cmplt., ¶ 14.) 28 Case 1:12-cv-01509-AWI-SKO Document 16 Filed 02/26/13 Page 2 of 12 1 Plaintiff's complaint alleges that it was granted the "exclusive nationwide commercial 2 distribution (closed-circuit) rights" to the Program. (Doc. 1, ¶ 14.) Plaintiff subsequently entered 3 into sublicensing agreements with commercial entities in the hospitality industry, including 4 restaurants, authorizing the sublicensee to publicly exhibit the Program. (Cmplt., ¶ 15.) Defendant 5 allegedly "unlawfully intercept[ed], receive[d], publish[ed], divulge[d], display[ed], and/or 6 exhibit[ed] the Program at the time of transmission at his commercial establishment in Avenal, 7 California." (Cmplt, ¶ 17.) 8 On November 14, 2012, Defendant filed an answer to the complaint asserting eight 9 affirmative defenses. (Doc. 5.) On December 4, 2012, Plaintiff filed a motion to strike all of 10 Defendant's affirmative defenses arguing that they were insufficient. (Doc. 7.) On December 24, 11 2012, Defendant filed an amended answer asserting four affirmative defenses. (Doc. 9.) The Court 12 set both motions to be heard on February 27, 2013. (Doc. 11.) On February 26, 2013, the matters 13 were deemed suitable for decision without oral argument, the February 27, 2013, hearing was 14 vacated and Plaintiff's motions were taken under submission. For the reasons set forth below, 15 Plaintiff's Motion to Strike Plaintiff's First Amended Answer is GRANTED, and Plaintiff's motion 16 to strike Defendant's affirmative defenses in the original answer is GRANTED in part and DENIED 17 in part. 18 II. DISCUSSION 19 A. Legal Standard 20 Pursuant to Federal Rule of Civil Procedure 12(f), the court is permitted to "strike from a 21 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." 22 Fed. R. Civ. P. 12(f). A defense may be insufficient as a matter of pleading or as a matter of 23 substance. Sec. People, Inc., Classic Woodworking, LLC, No. C-04-3133 MMC, 2005 WL 645592, 24 at *2 (N.D. Cal. Mar. 4, 2005). An affirmative defense may be considered insufficiently pled where 25 it fails to provide plaintiff with fair notice of the defense asserted. Wyshak v. City Nat'l Bank, 26 607 F.2d 824, 827 (9th Cir. 1979). An affirmative defense is insufficient as a matter of law where 27 "there are no questions of fact, that any questions of law are clear and not in dispute, and that under 28 no set of circumstances could the defense succeed." Ganley v. Cnty. of San Mateo, No. C06-3923 2 Case 1:12-cv-01509-AWI-SKO Document 16 Filed 02/26/13 Page 3 of 12 1 TEH, 2007 WL 902551, at *1 (N.D. Cal. Mar. 22, 2007). A matter is "immaterial" if it "has no 2 essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, 3 Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). 4 As motions to strike a defense as insufficient are disfavored, they will not be granted if the 5 insufficiency of the defense is not clearly apparent. See 5C Charles Alan Wright & Arthur R. Miller, 6 Federal Practice and Procedure § 1381 (3d ed.) In ruling on a motion to strike, a "court[] may not 7 resolve disputed and substantial factual or legal issues . " Whittlestone, Inc. v. Handi-Craft Co., 8 618 F.3d 970, 973 (9th Cir. 2010) (internal quotation marks omitted). Because the purpose of 9 pleading an affirmative defense is simply to give fair notice to plaintiff of the defense being asserted, 10 leave to amend should be freely granted in absence of prejudice to the opposing party. Wyshak, 11 607 F.2d at 826- 27. 12 B. Plaintiff's Motion to Strike Defendant's First Amended Answer 13 Federal Rule of Civil Procedure 15(a) provides the following, in relevant part: 14 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 15 (A) 21 days after serving it, or 16 (B) if the pleading is one to which a responsive pleading is required, 21 17 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 18 (2) Other Amendments. In all other cases, a party may amend its pleading only 19 with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. 20 21 Fed. R. Civ. P. 15(a)(1)-(2). 22 Here, Defendant filed his original answer on November 14, 2012. (Doc. 5.) Pursuant to Rule 23 15(a)(1)(A), Defendant was entitled to file an amended answer as a matter of right until December 24 5, 2012. However, Plaintiff did not file a First Amended Answer ("FAA") until December 24, 2012. 25 As Defendant did not obtain leave of court or a stipulation from Plaintiff, Defendant's amended the 26 answer as a matter of right is untimely under Rule 15(a)(1)(A).1 27 1 Defendant concedes in his opposition that the amended answer "was filed more than 21 days after the original 28 answer was filed." (Doc. 13, 2:19-20.) 3 Case 1:12-cv-01509-AWI-SKO Document 16 Filed 02/26/13 Page 4 of 12 1 Moreover, because the answer is not a pleading to which a responsive pleading is required 2 (see Fed. R. Civ. P. 7(a)(7) (reply to an answer not permitted unless ordered by the court)), 3 Defendant is not permitted to amend the answer as a matter of right under Rule 15(a)(1)(B). 4 Defendant's FAA, therefore, could only be filed by Plaintiff's written consent or with the court's 5 leave; as discussed above, Defendant obtained neither. Fed. R. Civ. P. 15(a)(2). As such, Plaintiff's 6 motion to strike Defendant's December 24, 2012, FAA is GRANTED. 7 C. Plaintiff's Motion to Strike Defendant's Affirmative Defenses in the Original Answer 8 In his original answer, Plaintiff asserted the following eight affirmative defenses: (1) Failure 9 to State Claim; (2) Plaintiff's Own Actions; (3) Defendant's Performance; (4) Acts of Others; 10 (5) Election of Remedies; (6) No Basis for Unfair Business Practice Claim; (7) No Basis for Claim 11 of Conversion; and (8) No Basis for Claim of Punitive Damages. (Doc. 5, p. 4-7.) 12 In the FAA, Plaintiff asserted four affirmative defenses: (1) Defendant's Performance; 13 (2) Acts of Others; (3) Estoppel; and (4) Election of Remedies. (Doc. 9, p. 5-6.) Defendant 14 concedes that the affirmative defenses he omitted from his original answer, i.e., Failure to State a 15 Claim, Plaintiff's Own Actions, No Basis for Unfair Business Practice Claim, No Basis for Claim 16 of Conversion, and No Basis for Claim of Punitive Damages "are essentially denials of the elements 17 of the plaintiff's complaint." (Doc. 13, 4:13-16.) In light of Defendant's concession regarding these 18 five affirmative defenses, the Court GRANTS Plaintiff's motion to strike with regard to those 19 affirmative defenses. The remaining three affirmative defenses in Defendant's original answer will 20 be considered in turn below. 21 1. Prejudice to Plaintiff 22 "Given [the] disfavored status [of motions to strike], courts often require a showing of 23 prejudice by the moving party before granting the requested relief." Neilson v. Union Bank of Cal. 24 N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). The Court is underwhelmed by Plaintiff's 25 argument as to how it will be prejudiced by allowing these affirmative defense to stand. 26 Specifically, Plaintiff states that "[i]f the defenses are permitted to survive, Plaintiff will be 27 compelled to expend time and resources litigating irrelevant issues." (Doc. 7, 9:13-21.) As noted 28 4 Case 1:12-cv-01509-AWI-SKO Document 16 Filed 02/26/13 Page 5 of 12 1 by the district court in J&J Sports Productions, Inc. v. Vargas, 2012 WL 2919681, at *2 (D. Ariz. 2 July 17, 2012), such a conclusory statement is wholly insufficient to establish prejudice.