Facebook, Inc. et al v. Gajjar, No. 4:2020cv02429 - Document 92 (N.D. Cal. 2022)

Court Description: ORDER GRANTING MOTION TO DISMISS; ORDER GRANTING IN PART MOTION TO STRIKE DEFENDANT'S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES by Judge Kandis A. Westmore granting 78 Motion to Dismiss; granting 83 Motion to Strike as to the affirmative d efenses, but the motion to strike under anti-SLAPP is DENIED as moot. Amended Answer due by 7/8/2022. (kc, COURT STAFF) (Filed on 6/17/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Download PDF

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FACEBOOK, INC., et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 4:20-cv-02429-KAW ORDER GRANTING MOTION TO DISMISS; ORDER GRANTING IN PART MOTION TO STRIKE DEFENDANT'S COUNTERCLAIMS AND AFFIRMATIVE DEFENSES v. BASANT D. GAJJAR, Defendant. Re: Dkt. Nos. 78 & 83 12 13 On April 20, 2022, Plaintiffs Meta Platforms, Inc. (f/k/a Facebook, Inc.) and Instagram, 14 LLC filed a motion to dismiss Defendant Basant D. Gajjar’s counterclaims. On April 29, 2022, 15 Plaintiffs filed a motion to strike Defendant’s counterclaims, in the alternative, and to strike his 16 affirmative defenses. 17 On June 16, 2022, the Court held a hearing, and, for the reasons set forth below, GRANTS 18 Plaintiffs’ motion to dismiss and GRANTS the motion to strike as to the affirmative defenses, 19 while DENYING the motion to strike the counterclaims as moot. 20 21 I. BACKGROUND On April 9, 2020, Plaintiffs filed a civil action against Defendant Basant Gajjar (d/b/a 22 LeadCloak) for breach of contract. (Compl., Dkt. No. 1.) Specifically, Plaintiffs allege that, since 23 May 2016, as the founder and system architect of “LeadCloak,” Defendant enabled and assisted 24 fraudulent advertisers in circumventing Facebook’s advertisement review process using a 25 technique known as “cloaking.” (Compl. ¶ 1.) Cloaking is used to hide from Plaintiffs the true 26 nature of the website linked to an ad, while presenting different content to users who clicked on 27 the ad. Id. Defendant allegedly developed, marketed, and sold cloaking software and services that 28 prevented Plaintiffs from reviewing the true landing pages for ads posted on Plaintiffs’ platforms. 1 Id. Defendant’s actions allegedly prevented Plaintiffs from detecting and rejecting deceptive, 2 harmful, and otherwise improper ads with landing pages that promoted, among other things, 3 deceptive diet pills and pharmaceuticals, cryptocurrency investment scams, and misinformation 4 about the economic impact of COVID-19. (Compl. ¶¶ 1-2.) These actions violated Plaintiffs’ 5 terms and policies that he agreed to, including the Facebook Terms of Service, Commercial 6 Terms, Instagram Terms of Use, and Facebook’s Advertising Policy and Self-Service Ad Terms 7 (collectively, the “Terms”). As part of the Terms, Gajjar promised Plaintiffs, among other things, 8 that he would not engage in any unlawful, misleading, or fraudulent conduct in connection with 9 Plaintiffs’ platforms—such as to circumvent Plaintiffs’ ad review process—or facilitate or support 10 others to do the same. (Compl. ¶¶ 24-31.) Defendant, while represented by counsel, filed a motion to dismiss for lack of jurisdiction, United States District Court Northern District of California 11 12 which was denied on March 2, 2022. (Dkt. No. 73.) Defendant’s attorneys were permitted to 13 withdraw, and Defendant filed his notice of appearance on March 30, 2022, and he is now 14 proceeding pro se. Also on March 30, 2022, Defendant filed an answer alleging 32 affirmative 15 defenses and attached a separate pleading containing 13 counterclaims. (Def.’s Answer, Dkt. No. 16 77 at 1; Def.’s Counter-Compl., Dkt. No. 77 at 21.) 17 On April 20, 2022, Plaintiffs filed a motion to dismiss Defendant’s counterclaims. (Pls.’ 18 Mot. to Dismiss, “Pls.’ MTD,” Dkt. No. 78.) On May 4, 2022, Defendant filed an opposition to 19 the motion to dismiss. (Def.’s MTD Opp’n, Dkt. No. 84.) On May 11, 2022, Plaintiffs filed a 20 reply to the motion to dismiss. (Pls.’ MTD Reply, Dkt. No. 85.) On April 20, 2022, Plaintiffs also filed two separate motions to strike the answer, so the 21 22 Court instructed them to file a single motion. On April 29, 2022, Plaintiffs filed a motion to strike 23 Defendant’s counterclaims and affirmative defenses. (Pls.’ Mot. to Strike. “Pls.’ MTS,” Dkt. No. 24 83.) On May 13, 2022, Defendant filed an opposition to the motion to strike. (Def.’s MTS Opp’n, 25 Dkt. No. 86.) On May 20, 2022, Plaintiffs filed a reply. (Pls.’ MTS Reply, Dkt. No. 88.) 26 // 27 // 28 // 2 II. United States District Court Northern District of California 1 LEGAL STANDARD 2 A. Motion to Dismiss under Rule 12(b)(6) 3 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based 4 on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 5 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 6 F.3d 729, 732 (9th Cir. 2001). 7 In considering such a motion, a court must “accept as true all of the factual allegations 8 contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation 9 omitted) and may dismiss the case or a claim “only where there is no cognizable legal theory” or 10 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 11 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 12 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation 13 marks omitted). 14 A claim is plausible on its face when a plaintiff “pleads factual content that allows the 15 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate “more 17 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 18 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of 19 a cause of action” and “conclusory statements” are inadequate. Iqbal, 556 U.S. at 678; see also 20 Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“[C]onclusory allegations of 21 law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a 22 claim.”). “The plausibility standard is not akin to a probability requirement, but it asks for more 23 than a sheer possibility that a defendant has acted unlawfully . . . When a complaint pleads facts 24 that are merely consistent with a defendant's liability, it stops short of the line between possibility 25 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 26 557) (internal citations omitted). 27 28 Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no request to amend is made “unless it determines that the pleading could not possibly be cured by 3 United States District Court Northern District of California 1 the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations 2 omitted). 3 B. 4 “A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a 5 party’s exercise of constitutional rights to free speech and to petition the government for redress of 6 grievances.” Daniel v. Wayans, 8 Cal. App. 5th 367, 379 (2017). “To determine whether a 7 lawsuit or cause of action should be disposed of as a SLAPP suit, [California Code of Civil 8 Procedure] section 425.16 establishes a two-part test.” Id. First, the defendant must make a 9 threshold showing that the challenged cause of action arises from protected activity. Id. “A Motion to Strike under anti-SLAPP 10 defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause of action 11 fits one of the categories spelled out in section 425.16, subdivision (e).” Id. (internal quotation 12 omitted). Second, if the defendant makes such a showing, the plaintiff must demonstrate a 13 reasonable probability of prevailing at trial on the merits of the challenged causes of action. Id. at 14 380. 15 C. 16 Federal Rule of Civil Procedures 8 requires that, when “responding to a pleading, a party 17 must . . . state in short and plain terms its defenses to each claim asserted against it.” Rule 12(f) 18 provides that, on its own or on a motion from a party, a “court may strike from a pleading an 19 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. 20 P. 12(f). “The purposes of a Rule 12(f) motion is to avoid spending time and money litigating 21 spurious issues.” Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 22 1167, 1170 (N.D. Cal. 2010) (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 23 1993)). Notwithstanding, “[t]he Ninth Circuit has long held that ‘[t]he key to determining the 24 sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the 25 defense.’” Perez v. Gordon & Wong Law Grp., P.C., No. 11-CV-03323-LHK, 2012 WL 1029425, 26 at *6 (N.D. Cal. Mar. 26, 2012)(quoting Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 27 1979)). 28 Motion to Strike Affirmative Defenses Motions to strike, however, “are generally disfavored because the motions may be used as 4 1 delaying tactics and because of the strong policy favoring resolution of the merits.” Barnes, 718 F. 2 Supp. 2d at 1170 (citation omitted). Thus, once properly pled, a motion to strike an affirmative 3 defense which alleges legal insufficiency will not be granted “unless it appears to a certainty that 4 plaintiffs would succeed despite any state of the facts which could be proved in support of the 5 defense.” Barnes, 718 F. Supp. 2d at 1170 (N.D. Cal. 2010)(quoting William Z. Salcer, Panfeld, 6 Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984)). If a defense is stricken, 7 “[i]n the absence of prejudice to the opposing party, leave to amend should be freely given.” 8 Wyshak, 607 F.2d at 826. United States District Court Northern District of California 9 “Ultimately, whether to grant a motion to strike lies within the sound discretion of the 10 district court.” Cruz v. Bank of New York Mellon, No. 12-CV-00846-LHK, 2012 WL 2838957, at 11 *2 (N.D. Cal. July 10, 2012) (citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th 12 Cir. 2010). III. 13 DISCUSSION Defendant’s Oppositions Violate Civil Local Rule 7-3(a) 14 A. 15 As an initial matter, Defendant’s oppositions are 44 and 51 pages, respectively. Under 16 Civil Local Rule 7-3(a), oppositions are limited to 25 pages. Since Defendant is pro se, the 17 undersigned declines to strike the pages in excess of 25, as requested by Plaintiffs. (See Pls.’ MTS 18 Reply at 1 n. 1.) That said, Defendant is advised that he is responsible for complying with the 19 Civil Local Rules, the Federal Rules of Civil Procedure, and the undersigned’s Standing Orders, 20 and that any future violations may result in striking briefs, or portions thereof, or denying the 21 relief requested without notice or opportunity to remedy the deficiency, which may result in 22 judgment being entered against him. 23 Additionally, the district court has produced a guide for pro se litigants called Representing 24 Yourself in Federal Court: A Handbook for Pro Se Litigants, which provides instructions on how 25 to proceed at every stage of your case, including discovery, motions, and trial, which is available 26 online (http://cand.uscourts.gov/prosehandbook) free of charge. 27 B. Counterclaims 28 Defendant brings 13 counterclaims for intentional infliction of emotional distress, 5 1 prospective economic advantage and relations, defamation, negligent interference with prospective 2 economic advantage, civil conspiracy, declaratory relief (two separate, but identical claims), 3 fraudulent and negligent misrepresentation, business disparagement, tortious interference with 4 business relations, extreme harassment, and attorneys’ fees. (See Def.’s Counter-Compl. at ¶¶ 86- 5 170.) United States District Court Northern District of California 6 Plaintiffs move to dismiss Defendant’s counterclaims on the grounds that they are barred 7 by the litigation privilege. (Pls.’ MTD at 3.) Alternatively, Plaintiffs move to strike the 8 counterclaims pursuant to California’s anti-SLAPP law. (Pls.’ MTS at 3.) 9 The Court will first address the motion to dismiss. California Civil Code § 47(b)’s 10 litigation privilege “generally protects from tort liability any publication made in connection with 11 a judicial proceeding.” Jacob B. v. Cnty. of Shasta, 40 Cal. 4th 948, 952, 154 P.3d 1003, 1005 12 (2007). The privilege applies to “any communication (1) made in judicial or quasi-judicial 13 proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of 14 the litigation; and (4) that [has] some connection or logical relation to the action.” Action 15 Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007). The litigation 16 privilege is absolute in nature, and it applies to all publications “‘irrespective of their 17 maliciousness.’” Olsen v. Harbison, 191 Cal. App. 4th 325, 333, 119 Cal. Rptr. 3d 460, 466 18 (2010) (citation omitted). 19 Here, Plaintiffs argue that Defendant’s counterclaims are based on the filing of this 20 lawsuit, the issuance of a press release regarding the filing of this case, and efforts to serve process 21 in this action, which fall within the purview of the litigation privilege. (Pls.’ MTD at 5.) The 22 Court agrees. 23 In opposition, Defendant argues that the claims are not barred by the litigation privilege, 24 because the litigation privilege does not protect tortious acts. (See Def.’s MTD Opp’n at 11-12.) 25 Specifically, Defendant contends that Plaintiffs “contacted various financial institutions to 26 terminate their banking relationships with Gajjar so that Gajjar would not have the financial means 27 28 6 United States District Court Northern District of California 1 to litigate and fight Facebook.” Id. at 13. As evidence, Defendant merely provides letters1 from 2 financial institutions informing him that they are closing his accounts. (Def.’s MTD Opp’n at 13, 3 Exs. B & C.) Notably, these allegations are not included in Defendant’s counterclaims, and 4 alleging these facts in the opposition is insufficient. Even so, the Court is unwilling to join in 5 Defendant’s intellectual leap, because, as Plaintiffs argue in their reply, there is a more plausible 6 explanation: that the financial institutions discovered this lawsuit on their own. (See Pls.’ MTD 7 Reply at 3-4.) In fact, Capital One’s notice explicitly states that “Capital One discovered adverse 8 past or present legal action involving an individual or entity associated with the account.” (Def.’s 9 MTD Opp’n, Ex. B.) It does not say that Facebook and Instagram notified them. Certainly, 10 Defendant fails to plead facts that tend to exclude this more likely possibility, and, at the hearing, 11 Defendant conceded that he did not currently know of any evidence to make his allegation 12 plausible. See Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996–97 (9th 13 Cir. 2014) (If two possible explanations exist, the plaintiff must provide facts that make their 14 allegations plausible, such as offering facts that tend to exclude the defendant’s alternative 15 explanation.) Thus, there is no evidence other than Defendant’s belief that Plaintiffs are engaging 16 in a “scorched-earth litigation strategy” to support his argument that the litigation privilege does 17 not apply. (See Def.’s MTD Opp’n at 13.) Furthermore, contrary to Defendant’s assertions, every counterclaim concerns actions 18 19 allegedly taken during the pendency of this litigation.2 For example, the second counterclaim for 20 prospective economic advantage and relations alleges that the filing of this lawsuit has “disrupted 21 Gajjar’s relationships and business opportunities with its customers.” (Def.’s Counter-Compl. ¶ 22 97.) The third counterclaim for defamation alleges that the filing of this lawsuit and the press 23 release are defamatory because he is not LeadCloak’s alter ego, and the “statements were 24 unnecessarily made publicly to numerous third parties to advance Counterclaim-Defendants’ 25 26 27 28 1 The correspondence is not attached to a supporting declaration. Even so, for the purposes of this motion, the Court will consider them to be true. 2 The sixth counterclaim for unfair and frivolous lawsuit is not a valid claim and must be dismissed with prejudice. Also, the counterclaim for attorney’s fees (No. 13) is a prayer for relief, rather than a cognizable claim, and must be dismissed with prejudice. 7 United States District Court Northern District of California 1 reputation and fame and to undoubtedly ruin Gajjar’s business and relationship.” (Def.’s Counter- 2 Compl. ¶¶ 76-77, 104-105.) The twelfth counterclaim for “extreme harassment”3 alleges that 3 Plaintiffs “spent countless hours and dollars attempting to find Gajjar just to serve Gajjar the 4 Complaint and Summons.” (Def.’s Counter-Compl. ¶ 158.) Then, in attempting service, Plaintiffs 5 “went as far as to try to bribe a doorman and a postal worker to get them to reveal Gajjar’s 6 location.” Id. at ¶ 159. Defendant then alleges that he would not be surprised if “Facebook tracked 7 the GPS coordinates of Gajjar’s residence from the Facebook Application that was installed on his 8 phone, and also listened to Gajjar’s conversations through the phone’s microphones without his 9 permission and his knowledge.” Id. at ¶ 160. The latter allegation is mere speculation while at the 10 same time essentially conceding that he has agreed to the Facebook Terms, which may permit 11 some location tracking. 12 Accordingly, the Court finds that Defendant’s counterclaims are barred by the litigation 13 privilege, and grants Plaintiffs’ motion to dismiss. All current counterclaims based on the facts 14 alleged are dismissed with prejudice, but Defendant is permitted to file a motion for leave to 15 amend should he discover new facts in support of these or other counterclaims. The only 16 counterclaims that are dismissed with prejudice in their entirety are the counterclaims for “unfair 17 and frivolous lawsuit,” “extreme harassment,” and “attorney’s fees,” because these are not proper 18 tort claims. Plaintiffs’ motion to strike is DENIED IN PART as moot insofar as it seeks to strike 19 Defendant’s counterclaims under California’s anti-SLAPP statute. 20 C. 21 An affirmative defense denies “plaintiff's right to recover, even if the allegations of the Motion to Strike under Rule 12(f) 22 complaint are true.” J & J Sports Prods., Inc. v. Terry Trang Nguyen, No. C 11-05433 JW, 2012 23 WL 1030067, at *3 (N.D. Cal. Mar. 22, 2012) (citation and internal quotations omitted). In other 24 words, it is a defense even if Plaintiffs can satisfy all elements of their prima facie case. See id. Plaintiffs argue that all 32 affirmative defenses must be stricken because they are “(1) 25 26 improper negative defenses, (2) insufficiently pled under Twombly-Iqbal, (3) insufficiently pled 27 28 3 This is not a cognizable tort claim. 8 1 under Rule 9(b) for affirmative defenses sounding in fraud or mistake, or (4) impertinent and bear 2 no relation to the Plaintiffs’ breach of contract claim.” (Pls.’ Mot. at 16.) In opposition, Defendant 3 argues that merely identifying the affirmative defenses satisfies the Ninth Circuit’s “fair notice” 4 standard. (Def.’s Opp’n at 40.) United States District Court Northern District of California 5 In the wake of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 127 S.Ct. 1955 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), the 7 question is whether the plausibility pleading standard for complaints “redefines what constitutes 8 ‘fair notice’ of an affirmative defense pled in an answer.” Perez, 2012 WL 1029425, at *6. While 9 neither the Ninth Circuit nor the Supreme Court has addressed this question, courts in this district 10 have consistently found that the Twombly-Iqbal standard applies to affirmative defenses. See, e.g., 11 Perez, 2012 WL 1029425, at *6-8; Barnes & Noble, Inc. v. LSI Corp., 2012 WL 359713, at *2 12 (N.D. Cal. Feb. 2, 2012); Bottoni v. Sallie Mae, Inc., 2011 WL 3678878, at *2 (N.D. Cal. Aug. 2, 13 2011); Barnes, 718 F.Supp.2d at 1171-72; Powertech Tech., Inc. v. Tessera, Inc., No. C 10-945 14 CW, 2012 WL 1746848, at *3-4 (N.D. Cal. May 16, 2012). 15 16 17 18 Here, Defendant’s affirmative defenses all suffer from some deficiency, which the Court will briefly address below to assist Defendant in streamlining his amended answer. i. Defense Nos. 2, 6, 8, 11, 14-15, and 17-18 are improper. Defenses that “constitute[] a denial of the claims and allegations” are not proper 19 affirmative defenses. J & J Sports Prods., Inc. v. Terry Trang Nguyen, No. C 11-05433 JW, 2012 20 WL 1030067, at *3 (N.D. Cal. Mar. 22, 2012); see also Barnes, 718 F. Supp. 2d at 1174 (“Failure 21 to state a claim is not a proper affirmative defense but, rather, asserts a defect in [the plaintiff’s] 22 prima facie case.”) Here, Plaintiffs asserted a single breach of contract claim, which requires: “(1) 23 a contract; (2) plaintiff’s performance; (3) defendant’s breach; and (4) damages to plaintiff.” 24 Facebook, Inc. v. Sluchevsky, 2020 WL 5823277, at *7 (N.D. Cal. Aug. 28, 2020). The following 25 defenses merely deny Plaintiffs can satisfy those elements, and, therefore, constitute a denial of 26 the claims and allegations. Thus, the following defenses must be stricken without leave to amend: 27 Failure to State a Claim (No. 2), No Breach (No. 6), No damages (Nos. 8, 14, 17), Lack of 28 Acceptance (No. 11), Damages Caused by Third Parties (no. 15), and Failure of Plaintiff to 9 1 2 ii. Nos. 5, 9, 19, and 29 bear no relation to the claim. 3 The Court further strikes without leave to amend those affirmative defenses which bear no 4 relation to Plaintiffs’ breach of contract claim, because they are impertinent. Terry Trang Nguyen, 5 2012 WL 1030067, at *2. First, the Communications Decency Act defense (No. 5) does not 6 apply, because the statute only protects the interactive computer service from liability for user- 7 generated content. Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 8 1157, 1162 (9th Cir. 2008). The service provider is, however, responsible for the content that it 9 creates. Id. at 1162. Here, Defendant allegedly created the content rendering this defense 10 11 United States District Court Northern District of California Disclose Material Fact (No. 18). inapplicable. The ninth affirmative defense for No Reasonable Reliance is stricken because Plaintiffs 12 need not prove reasonable reliance to prevail on a breach of contract claim. LocusPoint Networks, 13 LLC v. D.T.V. LLC, No. 14-CV-01278-JSC, 2015 WL 5043261, at *10 (N.D. Cal. Aug. 26, 2015). 14 Similarly, Defendant’s defense of good faith (No. 19) is stricken because acting in good faith is 15 not a defense to breach of contract. See Facebook, Inc. v. Rankwave Co., No. 19-CV-03738-JST, 16 2020 WL 4460550, at *3-4 (N.D. Cal. May 1, 2020). Moreover, Defendant’s affirmative defense 17 for Defamation/Character Assassination (No. 29) is stricken, because Defendant’s allegations that 18 Plaintiffs engaged in defamation by issuing a press release saying that he violated the Terms is not 19 a defense to breach of contract, rendering the defense impertinent. Finally, the “Additional 20 Affirmative Defenses” (Def.’s Answer at 18) is stricken because a defendant cannot preserve their 21 right to raise unknown affirmative defenses to avoid seeking leave to amend the answer once the 22 facts that give rise to the unpleaded defenses are known. See Thorium Cyber Sec., LLC v. Nurmi, 23 No. 3:19-CV-07669-WHO, 2020 WL 7260507, at *8 (N.D. Cal. Dec. 10, 2020). 24 25 26 27 28 Accordingly, Affirmative Defense Nos. 5, 9, 19, 29, and “Additional Affirmative Defenses” are stricken without leave to amend. iii. Fraud defenses particularity pleading requirement Defendant pleads two affirmative defenses involving fraud: Fraudulent Conduct (No. 13) and Fraud and Illegality (No. 26). (Def.’s Answer at 12, 16). Rule 9(b) applies to affirmative 10 1 defenses that sound in fraud or mistake, which “requires that a party plead the ‘who, what, when, 2 where, and how’ of the allegedly fraudulent acts.” Prod. & Ventures Int'l v. Axus Stationary 3 (Shanghai) Ltd., No. 16-CV-00669-YGR, 2017 WL 1330598, at *5 (N.D. Cal. Apr. 11, 2017) 4 (citing Fed. R. Civ. P. 9(b)). In support of his thirteenth affirmative defense of Fraudulent Conduct, Defendant makes 5 13 the following allegations: The Complaint is barred on the grounds of Plaintiff's fraudulent conduct, including negligent and/or intentional misrepresentations made by Plaintiff to Defendant. Plaintiffs have deliberately suppressed facts. Plaintiff suppression of facts are not only a complete waste of the Court's time, but also constitute a breach of a counsel’s attorney's fiduciary duty to the Court. Facebook tried to covertly gather evidence and to prove that LeadCloak was built to circumvent Facebook’s Advertising networks. All sets of events reeks of entrapment. Facebook mischaracterized, misrepresented, humiliated, defamed and denigrated the Defendant by calling him a scammer. Indeed, the lawsuit is primarily based on allegations about an obsolete, preliminary, beta versions of the LeadCloak software that was never implemented once LeadCloak.com went live in December 2018. 14 (Def.’s Answer at 12.) As Plaintiffs argue, none of these factual allegations would support a 15 defense to the breach of contract claim. (Pls.’ MTS at 22.) In opposition, and without elaboration, 16 Defendant argues that these allegations satisfy Rule 9(b), but he is mistaken. For example, 17 Plaintiffs’ pre-litigation investigation is not inherently fraudulent, and the undersigned is unclear 18 as to how that could constitute entrapment.4 6 7 8 9 10 United States District Court Northern District of California 11 12 The entirety of Defendant’s Fraud and Illegality Defense (No. 26) is that “[t]he Complaint, 19 20 in whole or in part, is precluded by the doctrines of fraud and illegality.” (Def.’s Answer at 16.) 21 This is a legal conclusion that runs afoul of Rule 9(b). Accordingly, these affirmative defenses are stricken with leave to amend. In amending, 22 23 Defendant, must allege different facts that would provide a valid defense to a breach of contract 24 claim. If Defendant cannot do so, he should not amend that defense. Should he discover new facts 25 that would give rise to an affirmative defense in the future, he can seek leave to amend his answer 26 at that time. 27 28 4 Moreover, entrapment is generally only a defense to criminal charges. 11 1 2 The remaining affirmative defenses do not put Plaintiffs on fair notice. The remaining affirmative defenses (Nos. 1, 3-4, 7, 10, 12, 16, 20-25, 27-28, 30-32) 3 generally consist only of bare statements reciting legal conclusions or fail to provide facts that 4 explain why the asserted defense is a defense to the breach of contract claim. (See Def.’s Answer 5 at 7-18.) To the extent that Defendant argues that Plaintiffs are aware of the nature of its 6 affirmative defenses, “[t]here is no authority supporting the notion that the opposing party’s 7 knowledge of the general facts of the case excuses the omission of factual bases of pleading 8 affirmative defenses.” LumaSense Techs., Inc. v. Advanced Eng'g Servs., LLC, No. 20-CV-07905- 9 WHO, 2021 WL 2953237, at *6 (N.D. Cal. July 14, 2021). 10 United States District Court Northern District of California iv. Accordingly, the remaining affirmative defenses run afoul of Rule 8 and must be stricken, 11 but Defendant is granted leave to amend. Again, if Defendant cannot currently allege facts in 12 support of every defense, he should not amend those defenses. Should he discover new facts that 13 would give rise to an affirmative defense that is not pleaded in the amended answer, he may seek 14 leave to amend at that juncture. 15 16 IV. CONCLUSION For the reasons set forth above, Plaintiffs’ motion to dismiss Defendant’s counterclaims 17 (Dkt. No. 78) is GRANTED. The motion to strike (Dkt. No. 83) in GRANTED as to the 18 affirmative defenses, but the motion to strike under anti-SLAPP is DENIED as moot. Defendant 19 shall file an amended answer within 21 days of this order, but he is only permitted to include those 20 affirmative defenses for which leave to amend has been granted. 21 In amending the answer, Defendant is encouraged to contact the Federal Pro Bono 22 Project’s Help Desk for assistance—a free service for pro se litigants—by calling (415) 782-8982. 23 24 IT IS SO ORDERED. Dated: June 17, 2022 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 25 26 27 28 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.