Ear v. Empire Collection Authorities, Inc. et al
Filing
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Order by Hon. Samuel Conti granting in part and denying in part 15 Motion to Strike 11 Answer to Complaint.(sclc2, COURT STAFF) (Filed on 8/7/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SORPHORN EAR,
Plaintiff,
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v.
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EMPIRE COLLECTION AUTHORITIES,
INC., a Washington corporation,
and ALONZO G. COLE, individually
and in his official capacity,
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Defendants.
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For the Northern District of California
United States District Court
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Case No. 12-1695-SC
ORDER GRANTING IN PART
PLAINTIFF'S MOTION TO
STRIKE AFFIRMATIVE DEFENSES
INTRODUCTION
Plaintiff Sorphorn Ear ("Plaintiff") has sued Defendants
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Empire Collection Authorities, Inc., and Alonzo G. Cole
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(collectively, "Defendants") for asserted violations of the Fair
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Debt Collection Practices Act, 15 U.S.C § 1692 et seq. ("FDCPA"),
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the Rosenthal Fair Debt Collection Practices Act, California Civil
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Code sections 1788-1788.33 ("RFDCPA"), and California Civil Code
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section 1812.700, which requires debt collectors to include a
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"Consumer Collection Notice" in the first written notice addressed
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to a debtor.
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that pleads six purported affirmative defenses.
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("Answer").
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defenses pursuant to Federal Rule of Civil Procedure 12(f).
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No. 15-1 ("Mot.").
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("Opp'n"), 17 ("Reply").
ECF No. 1 ("Compl.").
Defendants filed an answer
ECF No. 11
Plaintiff now moves to strike all six of Defendants'
The motion is fully briefed.
ECF
ECF Nos. 16
The Court determines that the motion is
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suitable for decision without oral argument.
Civ. L.R. 7-1(b).
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For the reasons set forth below, the Court GRANTS Plaintiff's
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motion in part and DENIES it in part.
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II.
LEGAL STANDARD
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A.
Affirmative Defenses
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Rule 12(f) provides that a federal court, on a motion or on
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its own, "may strike from a pleading an insufficient defense or any
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redundant, immaterial, impertinent, or scandalous matter."
Fed. R.
United States District Court
For the Northern District of California
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Civ. P. 12(f).
As both parties in this case acknowledge, ever
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since the Supreme Court reframed the Rule 8 pleading standard for
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complaints in Twombly and Iqbal,1 district courts in this circuit
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have split over whether the "plausibility" standard of Twombly and
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Iqbal applies to all Rule 8 pleadings, and hence to affirmative
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defenses pled in answers.
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Fulton Friedman & Gullace LLP, 11-2727 SC, 2012 WL 160221, at *1-2
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(N.D. Cal. Jan. 17, 2012) (Conti, J.) (describing split).
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Ninth Circuit has yet to take up the question.
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clear appellate authority, some district courts in this circuit
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apply the plausibility standard to the pleading of affirmative
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defenses, while some, noting that Twombly and Iqbal did not
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explicitly address pleading standards for affirmative defenses,
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continue to apply the "fair notice" standard set forth in Wyshak v.
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City National Bank, 607 F.2d 824 (9th Cir. 1979).
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instant motion, Plaintiff argues for the plausibility standard and
Mot. at 3; Opp'n at 4; see also Dion v.
The
In the absence of
Id.
In the
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v.
Iqbal, 556 U.S. 662 (2009).
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Defendants, emphasizing the split of authority within this circuit,
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urge the Court to apply the fair notice standard.
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It is true that there is a split within this circuit, but
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judges in this district have, uniformly so far as the undersigned
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can tell, adopted the plausibility standard.
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Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1172
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(N.D. Cal. 2010); Dion, 2012 WL 160221, at *2.
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standard "serve[s] to weed out the boilerplate listing of
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affirmative defenses which is commonplace in most defendants'
E.g., Barnes v. AT&T
The plausibility
United States District Court
For the Northern District of California
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pleadings where many of the defenses alleged are irrelevant to the
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claims asserted."
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it furthers the underlying purpose of Rule 12(f), which is to avoid
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spending time and money litigating spurious issues.
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Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on
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other grounds, 510 U.S. 517 (1994).
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complaint must allege enough supporting facts to nudge a legal
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claim across the line separating plausibility from mere
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possibility, Twombly, 550 U.S. at 570, a defendant's pleading of
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affirmative defenses must put a plaintiff on notice of the
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underlying factual bases of a plausible defense, Barnes, 718 F.
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Supp. 2d at 1172–73.
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See Twombly, 550 U.S. at 555.
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standard is not a high one: A defendant need only "point to the
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existence of some identifiable fact that if applicable . . . would
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make the affirmative defense plausible on its face."
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Defendants do not need to "establish conclusively in their initial
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pleading that their affirmative defenses must carry the day."
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Dion, 2012 WL 160221, at *3.
Barnes, 718 F. Supp. 2d at 1172.
In doing so,
See Fantasy,
Just as a plaintiff's
Mere labels and conclusions do not suffice.
The Court emphasizes that this
Id. at 1172.
Moreover, if, at a later stage in the
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litigation, defendants uncover facts which would permit them to
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plead an affirmative defense not previously asserted, they need
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only seek the Court's leave to amend their answer, assuming no
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prejudice to other parties will ensue from amendment.
Id.
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B.
Negative Defenses
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The foregoing standard applies to affirmative defenses, which
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require the defendant to meet a burden of proof.
These are
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distinct from negative defenses, which assert defects in the
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plaintiff's case.
See Barnes, 718 F. Supp. 2d at 1173-74; see also
United States District Court
For the Northern District of California
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Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir.
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2002) ("A defense which demonstrates that plaintiff has not met its
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burden of proof is not an affirmative defense.").
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affirmative defenses, if proven, shield the defendant from
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liability even if the plaintiff can prove her case; negative
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defenses simply assert that the plaintiff cannot prove her case.
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Rule 12(b)(6) sets forth the paradigmatic example of a negative
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defense: "failure to state a claim upon which relief may be
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granted."
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motions to dismiss rather than as putatively "affirmative"
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defenses.
In other words,
Rule 12(b)(6) defenses are more appropriately raised in
See Barnes, 718 F. Supp. 2d at 1174.
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However, Rule 12(h) explicitly permits certain negative
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defenses to be pled in an answer, specifically, the defenses
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enumerated in Rule 12(b)(2)-(5): lack of personal jurisdiction,
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improper venue, insufficient process, and insufficient service of
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process.
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those defenses in an answer is to avoid waiving them.
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These defenses are similar to a Rule 12(b)(6) defense in that they
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assert that the plaintiff is unable to prove some condition
See Fed. R. Civ. P. 12(h)(1).
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The purpose of pleading
See id.
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necessary to winning relief from the court; they differ in that the
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asserted defect in plaintiff's case is jurisdictional or
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procedural, rather than a defect in the plaintiff's prima facie
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case.
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under Rule 12(h)(1), unlike a party asserting a true affirmative
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defense, need not prove anything.
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defenses is the assertion that the plaintiff must prove something
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but cannot.
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"identifiable facts" that would put the plaintiff on notice of the
The key point, however, is that a party asserting a defense
The essence of Rule 12(h)(1)
Barnes's requirement that the defendant point to
United States District Court
For the Northern District of California
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basis of the defense is therefore inapplicable.
Another way to say
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this is that the only allegation material to a Rule 12(h)(1)
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defense is that the defense exists, so simply invoking the defense
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as set forth in Rule 12(b) gives a plaintiff all the notice she
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needs.
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bears the burden of showing that jurisdiction, venue, process, and
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service are proper.
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defense of lack of personal jurisdiction, the defendant need only
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invoke the rule forming the basis the defense, consistent with Rule
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11 obligations.
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based, plausibility pleading standard applicable to affirmative
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defenses.
That is because it is the plaintiff, not the defendant, who
Accordingly, with respect to the Rule 12(b)(2)
The defendant does not need to satisfy the fact-
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III. DISCUSSION
With the foregoing principles in mind, the Court concludes
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that it is appropriate to strike all but one of the defenses set
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forth in Defendants' answer.
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limitations, must be stricken because it is facially invalid as a
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matter of law.
The first defense, statute of
As Plaintiff points out, a one-year statute of
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limitations governs the claims in this case.
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Cal. Civ. Code § 1788.30(f).
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occurred when Defendants sent Plaintiff a letter dated April 8,
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2011.
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2012, just within the one-year limitations period.
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affirmative defense of statute of limitations therefore fails as a
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matter of law.
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strike the answer's first defense.
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without leave to amend.
United States District Court
The accused debt-collection attempt
Compl. Ex. A ("Letter").
Plaintiff filed suit on April 4,
See Compl.
The
Accordingly, the Court GRANTS Plaintiff's motion to
This defense shall be stricken
The next four defenses fail as insufficiently pled.
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For the Northern District of California
15 U.S.C. § 1692k(d);
The Court
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and parties are familiar with their contents so the Court will not
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recite Defendants' boilerplate pleadings here.
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Answer ¶¶ 14-17.
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affirmative defenses, but they consist solely of citations to
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various legal authorities and do not point to the existence of
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identifiable facts, let alone any facts that would make each
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defense plausible on its face.
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1172.
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that, under that case, they need only cite the statutory
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"underpinnings" of their defenses, without alleging any facts
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which, when combined with the cited legal rules, would or could add
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up to a cognizable defense.
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citation to legal authorities was sufficient under Wyshak -- which,
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as Defendants acknowledge, concerned a statute of limitations
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defense and thus did not rely on any facts other than those readily
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ascertainable from the face of the complaint -- it certainly is not
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sufficient under the Twombly/Iqbal plausibility standard.
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Accordingly, the Court GRANTS Plaintiff's motion to strike the
See generally
Suffice it to say that they are set forth as
See Barnes, 718 F. Supp. 2d at
Defendants concede as much by citing to Wyshak and arguing
See Opp'n at 5-6.
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Whether or not bare
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second, third, fourth, and fifth defenses.
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stricken, but Defendants will have leave to amend them.
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Defendants' sixth defense bears special attention.
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defense -- set forth as an affirmative defense, though it is
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actually a negative defense -- denies that this Court has personal
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jurisdiction over Defendants.
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jurisdiction is one of the defenses listed in Rule 12(h)(1), so
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Defendants properly raise it in their answer even without
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supporting facts.
United States District Court
For the Northern District of California
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Answer ¶ 18.
Those defenses shall be
That
Lack of personal
The Court therefore DENIES Plaintiff's motion to
strike this defense.
That being said, the Court notes that a Rule 12(b)(2) defense
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is more properly tested in the context of a motion to dismiss for
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lack of personal jurisdiction.
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defense in their answer saves Defendants from waiving the defense
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immediately, the defense may be waived by Defendants' future
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actions; in other words, merely invoking a Rule 12(b)(2) defense in
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an answer does not preserve the defense for the duration of the
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case.
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9.33 ("Rule 12(h)(1) merely sets out the 'outer limit' of waiver.
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Most courts hold these defenses may also be waived by implication
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from acts acknowledging the court's power to adjudicate.").
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Defendants must do something to test the defense, and
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jurisdictional challenges should be addressed sooner rather than
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later.
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amend their answer, Defendants first must file a motion to dismiss
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this action for lack of personal jurisdiction if Defendants intend
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to litigate that defense.
Moreover, while asserting the
See, e.g., Cal. Prac. Guide Fed. Civ. Pro. Before Trial §
Accordingly, though the Court gives Defendants leave to
If Defendants choose to do so, and the
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Court retains jurisdiction, Defendants shall be given leave to file
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an amended answer at that time.
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff's Rule
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12(f) motion to strike in part and DENIES it in part.
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first affirmative defense, statute of limitations, is STRICKEN WITH
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PREJUDICE because it is insufficient as a matter of law.
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answer's next four affirmative defenses are STRICKEN WITHOUT
United States District Court
For the Northern District of California
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PREJUDICE.
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The answer's
The
jurisdiction, remains undisturbed.
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The sixth affirmative defense, lack of personal
Pursuant to Rule 15(a)(2), the Court gives Defendants LEAVE to
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file an amended answer within twenty-one (21) days of this Order.
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If, however, Defendants choose to continue to assert their Rule
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12(b)(2) defense, they shall file a motion to dismiss for lack of
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personal jurisdiction instead of an amended answer.
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motion shall be filed within twenty-one (21) days of this order.
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If the Court retains jurisdiction over Defendants after ruling on
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the motion to dismiss, Defendants shall be given leave to file an
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amended answer consistent with the guidance in this Order.
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Defendants file an amended answer without a Rule 12(b)(2) defense,
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the Court will deem that defense to have been waived.
Any such
If
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IT IS SO ORDERED.
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Dated: August 7, 2012
UNITED STATES DISTRICT JUDGE
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