-SMS J & J Sports Productions, Inc. v. Helper et al, No. 1:2010cv02109 - Document 18 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION and ORDER Regarding Plaintiff's 11 Motion to Strike, signed by Judge Oliver W. Wanger on 5/23/2011. (The second and fifth affirmative defenses alleged in the Answer are STRICKEN; and Defendants shall file an amended answer within fifteen (15) days of electronic service of this decision.)(Gaumnitz, R)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 1:10-cv-02109-OWW-SMS 8 J & J SPORTS PRODUCTS, INC., 9 MEMORANDUM DECISION AND ORDER REGARDING PLAINTIFF S MOTION TO STRIKE (Doc. 11) Plaintiff, 10 v. 11 IAN DOUGLAS HELPER, et al., 12 Defendants. 13 14 I. INTRODUCTION. 15 16 17 J & J Sports Products, Inc., ( Plaintiff ) proceeds with an action for damages against Ian Douglas Helper and Stephen David Helper ( Defendants ).1 18 19 20 On February 23, 2011, Ian Douglas Helper and Stephen David Helper filed an answer to Plaintiff s complaint ( Answer ). 8). 21 22 Plaintiff 25 filed a motion to strike various defenses asserted in the Answer on March 16, 2011. 23 24 (Doc. affirmative (Doc. 11). Defendants filed opposition to Plaintiff s motion to strike on April 22, Plaintiff s 2011. motion (Doc. only 13). with Defendants respect to opposition affirmative opposes defenses 26 27 28 1 Jeremy Porter Helper is also a named Defendant, however, he filed a separate answer on March 16, 2011, (Doc. 12), and that answer is not implicated in the instant motion. 1 1 numbers two and five. 2 (Doc. 14). II. FACTUAL BACKGROUND. 3 4 Plaintiff filed a reply on March 2, 2011. Plaintiff was granted the exclusive nationwide commercial 5 distribution rights 6 Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight 7 Program 8 ( Program ). 9 program at their commercial establishment. 10 III. LEGAL STANDARD. telecast to a program nationwide on entitled: Saturday, Firepower: November Manny 14, 2009 Defendants unlawfully intercepted and exhibited the 11 District courts may strike from a pleading an insufficient 12 defense or any redundant, immaterial, impertinent, or scandalous 13 matter. Fed. R. Civ. P. 12(f). 14 strike is to avoid the expenditure of time and money that must 15 arise from litigating spurious issues by dispensing with those 16 issues prior to trial. 17 F.3d 970, 973 (9 th Cir. 2010). 18 has no essential or important relationship to the claim for relief 19 or the defenses being plead. 20 consists of statements that do not pertain, and are not necessary, 21 to the issues in question. 22 and infrequently granted." E.g., NRDC v. Kempthorne, 539 F. Supp. 23 2d 1155, 1162 (E.D. Cal. 2008). Whittlestone, Inc. v. Handi-Craft Co., 618 Immaterial matter is that which Id. Id. at 974. Impertinent matter "Motions to strike are disfavored IV. DISCUSSION. 24 25 The function of a 12(f) motion to Defendants do not oppose Plaintiff s motion to strike 26 affirmative defenses 1, 3, 4, 6, 7, 8, 9, and 10 asserted in the 27 Answer. 28 second and fifth affirmative defenses asserted in the Answer. Defendants only oppose Plaintiff s motion to strike the 2 1 The second affirmative defense alleges: 2 Defendants allege that Ian Douglas Helper and Stephen David Helper cannot be held individually liable for actions, if any, of Defendant Tilted Kilt or its agents, employees, or other representatives because Defendants Ian Douglas Helper and Stephen David Helper were not present at the time of any alleged violation, were unaware of and did not authorize any act that may have violated Plaintiff s rights, were not officers of the corporation, and Ian Douglas Helper and Stephen David Helper did not reap any commercial profit from any alleged violation. 3 4 5 6 7 8 The second affirmative defense is unintelligible, as it does not 9 appear to be an affirmative defense at all.2 See, e.g., FDIC v. 10 Main Hurdman, 655 F.Supp. 259, 262 (E.D.Cal.1987) ( Affirmative 11 defenses plead matters extraneous to the plaintiff's prima facie 12 case, which deny plaintiff's right to recover, even if the 13 allegations of the complaint are true."). Further, the second 14 affirmative defense references a corporation, but there is no 15 corporate defendant in this action. As the second affirmative 16 defense does not provide fair notice of the nature of the defense, 17 it is stricken, without prejudice. See, e.g., Wyshak v. City 18 National Bank, 607 F.2d 824, 827 (9th Cir.1979) ( The key to 19 determining the sufficiency of pleading an affirmative defense is 20 whether it gives plaintiff fair notice of the defense."). 21 22 2 23 24 25 26 27 The fact that the contentions presented in the second and fifth affirmative defenses may be improperly labeled as "affirmative defenses" does not render them "insufficient defenses" within the meaning of Rule 12. See In re Wash. Mut., Inc. Sec., Derivative & ERISA Litigation, 2011 U.S. Dist. LEXIS 33531 *22-24 (W.D. Wa. 2011) ("Though improperly pleaded, these affirmative defenses are related to the litigation and are not immaterial, impertinent or scandalous. The Court will simply consider them not as affirmative defenses, but as general denials or objections"); see also J & J Sports Prods. v. Khachatrian, 2011 U.S. Dist. LEXIS 22800 *3-4 (D. Arizona 2011) ("Accordingly, the Court interprets Defendants' affirmative defense as a Rule 12(b)(6) defense, of which Plaintiff has fair notice, and will not strike it."). 28 3 1 2 The fifth affirmative defense asserted in the Answer is also deficient. 3 The fifth affirmative defense provides: Defendants allege that the damages of plaintiff, if any, as alleged were not caused by these answering Defendants, but were the result of the acts of third parties over which the answering Defendants, or each of them, had no control. 4 5 6 The fifth affirmative defense does not plead sufficient factual 7 information to give Plaintiff fair notice of the defense as it 8 fails to identify any third parties or their acts or omissions. 9 The fifth affirmative defense is stricken, without prejudice. 10 ORDER 11 For the reasons stated, IT IS ORDERED: 12 1) The second and fifth affirmative defenses alleged in the 13 Answer are STRICKEN; and 14 2) Defendants shall file an amended answer within fifteen (15) 15 days of electronic service of this decision. 16 IT IS SO ORDERED. 17 18 Dated: hkh80h May 23, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 4