Paul Reiffer v. HGM Holdings LLC, No. 1:2018cv01058 - Document 24 (E.D. Cal. 2019)

Court Description: MEMORANDUM DECISION and ORDER Re Second Motion to Strike 19 , signed by Chief Judge Lawrence J. O'Neill on 4/1/2019: Plaintiff's motion to strike, ECF No. 19, is GRANTED as to the second and third affirmative defenses without leave to amend and DENIED as to the remaining affirmative defenses. (Hellings, J)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 PAUL REIFFER, 7 8 9 10 11 1:18-cv-1058-LJO-BAM Plaintiff, MEMORANDUM DECISION AND ORDER RE SECOND MOTION TO STRIKE v. HGM HOLDINGS LLC D/B/A HGM BUSINESS GROUP, (ECF No. 19) Defendant. 12 13 14 I. INTRODUCTION This is a copyright infringement dispute between Plaintiff Paul Reiffer (“Reiffer” or “Plaintiff”), 15 a professional landscape, cityscape and commercial photographer, and Defendant HGM Holdings LLC, 16 d/b/a HGM Business Group (“HGM” or “Defendant”), a consulting firm for small businesses that helps 17 with strategic planning, daily operating procedure and marketing. ECF No. 1. The complaint alleges one 18 count of copyright infringement in violation of 17 U.S.C. § 501, claiming HGM copied Reiffer’s 19 photograph from the internet to promote its business activities. Id. Defendant answered and on 20 November 26, 2018, Plaintiff filed a motion to strike all twenty (20) of Defendant’s affirmative defenses 21 pursuant to Federal Rule of Civil Procedure 12(f). ECF Nos. 6, 11. The Court denied the motion to strike 22 as moot after ordering Defendant to file an amended answer that was more well-considered and relevant 23 to the cause of action alleged against it. ECF No. 17 at 6. 24 Defendant filed an amended answer pursuant to the Court’s Order. ECF No. 18. On February 25 28, 2019, Plaintiff again moved to strike all of Defendant’s affirmative defenses in the amended answer. 1 1 ECF No. 19. Defendant opposed and Plaintiff replied. ECF Nos. 20, 22. The Court finds it appropriate 2 to rule on the motion without oral argument. See Local Rule 230(g). II. LEGAL STANDARD 3 4 Federal Rule of Civil Procedure 12(f) permits a court, either on its own or on a party’s motion, 5 to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 6 scandalous matter.” Fed. R. Civ. P. 12(f). A defense is insufficient if it fails to provide the plaintiff with 7 fair notice of the defense. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). “Redundant” 8 allegations are those that are needlessly repetitive or wholly foreign to the issues involved in the action. 9 Gilbert v. Eli Lilly Co., Inc., 56 F.R.D. 116, 121, n.4 (D.P.R. 1972). “‘Immaterial’ matter is that which 10 has no essential or important relationship to the claim for relief or the defenses being pleaded. . . . 11 ‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to the issues in 12 question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5C Charles A. Wright 13 & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL, § 1382 (2d ed.)), rev’d. on other 14 grounds, 510 U.S. 517 (1994). 15 “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must 16 arise from litigating spurious issues by dispensing with those issues prior to trial . . . .” Whittlestone, Inc. 17 v. Handi–Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010) (quoting Fogerty, 984 F.2d at 1527). When a 18 court considers a motion to strike, it “must view the pleading in a light most favorable to the pleading 19 party.” In re 2TheMart.com, Inc. Sec. Lit., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). A court must 20 deny the motion to strike if there is any doubt whether the allegations in the pleadings might be relevant 21 in the action. Id. at 965-966; Walters v. Fid. Mortg. of CA, 730 F. Supp. 2d 1185, 1196 (E.D. Cal. 2010) 22 (“A motion to strike should not be granted unless it is absolutely clear that the matter to be stricken 23 could have no possible bearing on the litigation.”); Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 24 1335, 1339 (N.D. Cal. 1991), on reconsideration, No. CIV. 90-20610, 1991 WL 207480 (N.D. Cal. July 25 1, 1991) (same). Additionally, “[m]otions to strike are disfavored and infrequently granted.” Neveu v. 2 1 City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005); Dorros v. JP Morgan Chase Bank, N.A., 2 No. CV 10-08319 DMG (PJWx), 2011 WL 13217681, at *4 (C.D. Cal. July 22, 2011) (“Courts generally 3 view Rule 12(f) motions with disfavor and grant them infrequently . . . because of the limited importance 4 of the pleadings in federal practice.”); see also BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 5 917 (8th Cir. 2007) (“Striking a party’s pleading . . . is an extreme and disfavored measure.”). 6 The Federal Rules require defendants to “affirmatively state any avoidance or affirmative 7 defense.” Fed. R. Civ. P. 8(c). An affirmative defense is defined as “[a] defendant’s assertion of facts 8 and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations 9 in the complaint are true.” Black’s Law Dictionary (10th ed. 2014); see also Wright v. Southland Corp., 10 187 F.3d 1287, 1303 (11th Cir. 1999) (“An affirmative defense is generally a defense that, if established, 11 requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the 12 evidence.”). “A defense which demonstrates that plaintiff has not met its burden of proof as to an element 13 plaintiff is required to prove is not an affirmative defense.” Zivkovic v. S. California Edison Co., 302 14 F.3d 1080, 1088 (9th Cir. 2002). “The key to determining the sufficiency of pleading an affirmative 15 defense is whether it gives plaintiff fair notice of the defense.” Simmons v. Navajo County, Ariz., 609 16 F.3d 1011, 1023 (9th Cir. 2010) (quoting Wyshak, 607 F.2d at 827). “Fair notice generally requires that 17 the defendant state the nature and grounds for the affirmative defense.” Roe v. City of San Diego, 289 18 F.R.D. 604, 608 (S.D. Cal. 2013). “It does not, however, require a detailed statement of facts.” Id. 19 20 III. DISCUSSION The Court indicated in its prior Order that Defendant’s prior answer and its twenty affirmative 21 defenses contained nothing more than boilerplate pleading without any indication how the defenses 22 apply to the facts of this case. See ECF No. 17. The amended answer instead pleads seven affirmative 23 defenses only three of which were in the prior answer. See ECF No. 18. Plaintiff moves to strike the 24 seven affirmative defenses now in HGM’s amended answer, claiming again that Defendant filed 25 “boilerplate, insufficient, and/or legally baseless affirmative defenses.” ECF No. 19 at 3. Plaintiff 3 1 submits that “he will be prejudiced if he is forced to respond and litigate these improper affirmative 2 defenses.” Id. at 4. Defendant’s only legal argument in opposition to the motion to strike is that such 3 motions are disfavored and thus the motion should be denied. ECF No. 20. HGM does not address any 4 of Plaintiff’s individual arguments with respect to each affirmative defense. Defendant does submit that 5 “Plaintiff’s complaint is a boilerplate complaint that is only six pages and is [sic] offers very limited 6 facts.” Id. at 3. 7 While Defendant has not alleged facts to support the affirmative defenses now pled, Defendant 8 has alleged defenses which appear at least facially relevant to the copyright infringement claim. As the 9 Court previously intimated in its Order on the first motion to strike, while some of Plaintiff’s arguments 10 may be legally correct, Plaintiff’s second motion to strike again does not demonstrate how he is 11 prejudiced by the pleading of these seven affirmative defenses. See ECF No. 17 at 4-6 & n. 5. The second 12 motion to strike appears to be a formalistic exercise and an unnecessary use of limited court resources 13 as it does little to advance this litigation. See Hernandez v. Balakian, No. CV-F-06-1383 OWW/DLB, 14 2007 WL 1649911, at *3 (E.D. Cal. June 1, 2007) (“While it appears that Plaintiff’s position is legally 15 correct, it also appears that Plaintiff's motion with regard to these affirmative defenses is . . . an 16 unnecessary formalism wasting the time and resources of the parties and the Court.”) (internal quotation 17 marks omitted). Nevertheless, the Court addresses the second motion to strike each of the affirmative 18 defenses below. 19 A. First Affirmative Defense – Statute of Limitations 20 As to the first affirmative defense, claiming that Plaintiff’s cause of action is barred by the three- 21 year statute of limitation pursuant to 17 U.S.C. § 507(b), Plaintiff argues that the answer only states 22 what the statute of limitations is but gives plaintiff vague or minimal information as to how it applies in 23 this case. ECF No. 19 at 4. However, Plaintiff’s complaint also does not make it clear when the alleged 24 copyright infringement actually took place besides stating when the photograph was taken (2014) and 25 when its copyright was registered (2017). It makes little sense to strike the statute of limitation defenses 4 1 when the complaint also lacks detail on the timing of its infringement claim. See, e.g., Dodson v. Munirs 2 Co., No. CIV. S-13-0399 LKK, 2013 WL 3146818, at *8 (E.D. Cal. June 18, 2013) (denying motion to 3 strike statute of limitations defense, reasoning that “given that plaintiff has failed to allege in his 4 complaint the date(s) on which the alleged violations occurred, defendant cannot be expected to 5 articulate the statutes of limitations that may bar plaintiff’s claims”). The motion to strike is DENIED 6 as to the first affirmative defense. 7 B. Second and Third Affirmative Defenses – Estoppel and Waiver 8 As to the second and third affirmative defenses (estoppel and waiver), the Court previously 9 warned Defendant that the conclusory statements in its answer with respect to these defenses have been 10 found to be insufficient for failure to provide fair notice. See ECF No. 17 at 5, n. 3; see also Qarbon.com 11 Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004) (“simply refer[ring] to the doctrines 12 without setting forth the elements of its affirmative defenses . . . does not provide ‘fair notice’ of 13 [defendant’s] defenses” of waiver, estoppel, and unclean hands); Stevens v. CoreLogic, Inc., No. 14-cv14 1158-BAS-JLB, 2015 WL 7272222, at *4 (S.D. Cal. November 17, 2015) (finding no fair notice 15 provided for affirmative defenses of waiver, estoppel, acquiescence, statute of limitations, and laches 16 where defenses “contain[ed] little more than a recitation of legal doctrines of questionable applicability 17 to Plaintiffs’ claims”). Defendant did not bother to change or amend the conclusory terms of these 18 affirmative defenses despite being given the opportunity to do so by the Court. Accordingly, the second 19 and third affirmative defenses for estoppel and waiver are therefore STRICKEN without leave to amend. 20 C. Fourth, Fifth, and Sixth Affirmative Defenses – Fair Use, License, and Abandonment 21 With respect to the fourth affirmative defense (fair use), fifth affirmative defense (license), and 22 sixth affirmative defense (abandonment), Plaintiff submits essentially the same arguments that these are 23 not “proper affirmative defense[s]” and that Defendant does not allege enough facts to substantiate these 24 defenses, rendering them insufficient. ECF No. 19 at 6-7. With respect to the fourth and fifth affirmative 25 defenses, Plaintiff cites to Facebook, Inc. v. Power Ventures, Inc., No. C 08-05780 JW, 2010 WL 5 1 3291750, at *15 (N.D. Cal. July 20, 2010) and Daley v. Scott, 2016 U.S. Dist. LEXIS 83735, at *4 (M.D. 2 Fla. June 28, 2016) for the proposition that “barebones pleading” is inadequate. Id. In moving to strike 3 the sixth affirmative defense for abandonment of rights, Plaintiff appears to be litigating whether the 4 defense could be successful on the merits in his motion to strike. ECF No. 19 at 7-8. 5 A court must deny the motion to strike if there is any doubt whether the allegations in the 6 pleadings might be relevant in the action. See, e.g., In re 2TheMart.com, Inc. Sec. Lit., 114 F. Supp. 2d 7 at 965-66; S.E.C. v. Sands, 902 F. Supp. 1149, 1166 (C.D. Cal. 1995) (“Even when the defense under 8 attack presents a purely legal question, courts are reluctant to determine disputed or substantial questions 9 of law on a motion to strike.”), aff’d sub nom. S.E.C. v. First Pac. Bancorp, 142 F.3d 1186 (9th Cir. 10 1998). Here it is possible that these affirmative defenses have some bearing on the copyright 11 infringement claim. It is not clear whether HGM’s fair use, license, abandonment defenses will be 12 successful, but that is not for the Court to decide on a motion to strike. See United States v. Wang, 404 13 F. Supp. 2d 1155, 1158 (N.D. Cal. 2005) (“motions to strike should not be granted unless it is clear that 14 the matter to be stricken could have no possible bearing on the subject matter of the litigation”) (quoting 15 Colaprico, 758 F. Supp. at 1339). In the absence of any arguments from Plaintiff that such defenses are 16 inapplicable to the cause of action, the Court will not strike these defenses, as it appears fair use, license, 17 or abandonment may be applicable to the copyright infringement claim stated against Defendant and 18 therefore may have some possible bearing on the litigation. Cf. Joe Hand Promotions, Inc. v. Dorsett, 19 No. 12-CV-1715-JAM-EFB, 2013 WL 1339231, at *4 (E.D. Cal. Apr. 3, 2013) (striking fair use 20 affirmative defense where no copyright infringement claim had been asserted); A&M Records, Inc. v. 21 Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001) (license and abandonment may apply in certain 22 narrow circumstances to copyright claims), as amended (Apr. 3, 2001), aff’d, 284 F.3d 1091 (9th Cir. 23 2002). As to Plaintiff’s arguments on the merits of the sixth affirmative defense for abandonment, such 24 merits arguments are not appropriate on a motion to strike. See, e.g., Neveu, 392 F. Supp. 2d at 1185. 25 Additionally although these affirmative defenses do not allege facts in support, Plaintiff does not 6 1 explain how he will be prejudiced by the pleading of these defenses besides stating in conclusory terms 2 that each of these defenses prejudices him. ECF No. 19 at 6-7 (“This affirmative defense prejudices the 3 Plaintiff by forcing him to litigate extraneous issues which is a waste of both time and money.”).1 It is 4 not clear what extraneous issues Plaintiff will be forced to litigate as a result of these defenses that may 5 be relevant to the copyright infringement claim. See San Diego Unified Port Dist. v. Monsanto Co., 309 6 F. Supp. 3d 854, 861 (S.D. Cal. 2018) (denying motion to strike affirmative defenses, finding in part 7 “the Court cannot conclude at this early stage in proceedings that these defenses will have no possible 8 bearing on the subject matter of the litigation”). Motions to strike pursuant to Rule 12(f) “should only 9 be granted if the ‘matter has no logical connection to the controversy at issue and may prejudice one or 10 more of the parties to the suit.’” New York City Employees’ Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 11 1128 (N.D. Cal. 2009) (quoting Rivers v. County of Marin, 2006 WL 581096, at *2 (N.D. Cal. 2006)) 12 (emphasis in original). “Where the moving party cannot adequately demonstrate such prejudice, courts 13 frequently deny motions to strike ‘even though the offending matter literally [was] within one or more 14 of the categories set forth in Rule 12(f).’” Id.; see also Joe Hand Promotions, Inc., 2013 WL 1339231, 15 at *6 (denying motion to strike license defense when plaintiff failed to demonstrate prejudice or to 2 16 provide authority to support striking defense). The Court finds that Plaintiff has not demonstrated how 17 18 19 20 21 22 23 24 25 The Court notes that Plaintiff’s prejudice argument premised on a waste of resources is somewhat undermined by litigating two motions to strike, despite their disfavored status, rather than advancing the litigation. See, e.g., Shire LLC v. Impax Labs., Inc., No. C 10-5467 RS, 2011 WL 13152734, at *4 (N.D. Cal. Aug. 29, 2011) (noting that striking defense and requiring Defendant to restate it “would waste resources better spent on advancing this case on the merits” and denying motion to strike subject matter jurisdiction defense.) In the future, the parties are encouraged to meet and confer in an attempt to resolve issues reasonably prior to filing motions. 2 But see Rosen v. Masterpiece Mktg. Grp., LLC, 222 F. Supp. 3d 793, 802–03 (C.D. Cal. 2016) (finding abandonment and statute of limitation affirmative defense were devoid of factual allegations and striking them); Wild v. Benchmark Pest Control, Inc., No. 1:15-cv-01876- JLT, 2016 WL 1046925, at *3-*4 (E.D. Cal. Mar. 16, 2016) (granting motion to strike fair use and abandonment affirmative defenses in copyright infringement action where they were without “supporting factual allegations.”). The Court separately notes that it declines to enter the muddy waters on whether the heightened pleading standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies to pleading affirmative defenses in the context of this motion. Plaintiff’s reply brief argues that “[t]he Eastern District requires and follows the heightened pleading standards set forth in Iqbal and Twombly for the pleading of affirmative defenses.” ECF No. 22 at 3 (citing Dodson v. Munirs Co., No. CIV. S-13-0399 LKK, 2013 WL 3146818, at *2-*3 (E.D. Cal. June 18, 2013) (“District courts within the Ninth Circuit are divided as to whether Twombly and Iqbal apply to affirmative defenses”)). However, since Dodson, other courts in this district have found that “[t]he Ninth Circuit has spoken to the standard by which affirmative 1 7 1 he will prejudiced by the lack of factual detail provided in these defenses. Accordingly, the motion to strike the fourth, fifth, and sixth affirmative defenses is DENIED. 2 3 D. Seventh Affirmative Defense - Defective Copyright 4 Plaintiff argues that the seventh affirmative defense of defective copyright points to a defect in 5 plaintiff’s prima facie case and therefore is not technically an affirmative defense and should be stricken. 6 ECF No. 19 at 8. While Plaintiff may be correct that “[d]efenses challenging elements of a plaintiff's 7 prima facie case are not appropriately characterized as affirmative defenses[,]” as the Court previously 8 noted “district courts within this circuit have held that denials that are improperly pled as defenses should 9 not be stricken on that basis alone.” San Diego Unified Port Dist., 309 F. Supp. 3d at 861 (collecting 10 cases); see also ECF No. 17 at 5, n.2; Joe Hand Promotions, Inc., 2013 WL 1339231, at *3 (noting that 11 lack of proximate cause and lack of damages are not proper affirmative defenses as they merely negate 12 elements of plaintiff’s claims and attack plaintiff’s prima facie case but denying motion to strike these 13 defenses because Plaintiff failed to indicate how it was prejudiced by the presence of these defenses 14 besides making a conclusory statement). Besides the repeated chorus in the motion that all the 15 affirmative defenses “forc[e] [Plaintiff] to litigate issues without any basis or allegation and [are] a waste 16 of both time and money[,]” ECF No. 19 at 6-9, Plaintiff does not actually explain how this seemingly 17 relevant defense, albeit not technically an affirmative defense, would cost it more resources to litigate 18 in the context of this copyright infringement suit. See, e.g., Mophie, Inc. v. Shah, No. SA CV 13-cv19 01321 DMG (JEMx), 2014 WL 12771126, at *2 (C.D. Cal. Jan. 23, 2014) (finding the conclusory 20 argument that “if these insufficient and material defenses were to remain, they would needlessly 21 22 23 24 25 defenses must be pled” and decided that “the ‘fair notice’ required by the pleading standards only requires describing [an affirmative] defense in ‘general terms.’” Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 991 (E.D. Cal. 2016) (citing Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015)). In Gomez, the court noted that “[i]n this district, courts have recently read Kohler to have resolved the split regarding whether the heightened ‘plausibility’ requirement set out in Twombly and Iqbal modifies the ‘fair notice’ standard traditionally applied to affirmative defenses; they found that it does not.” Id. (but noting that courts in the Northern District continue to apply the plausibility standard finding that Kohler did not specifically address the question). Because Plaintiff has failed to show prejudice, the Court declines to address whether the heightened pleading standard applies. 8 1 complicate the litigation and force [Plaintiff] to conduct unnecessary and costly discovery, and to 2 ultimately address them at a later date” to be insufficient to establish prejudice). Plaintiff here has not 3 demonstrated prejudice and the motion to strike the seventh affirmative defense is DENIED. 4 As the Court previously noted, “[m]otions to strike a defense as insufficient are not favored by 5 the federal courts because of their somewhat dilatory and often harassing character. Thus, even when 6 technically appropriate and well-founded, Rule 12(f) motions often are not granted in the absence of a 7 showing of prejudice to the moving party.” 5C Charles A. Wright & Arthur R. Miller, FEDERAL 8 PRACTICE AND PROCEDURE: CIVIL, § 1381 (3d ed.). Plaintiff fails to demonstrate or explain how 9 litigating these seven affirmative defenses will prejudice him, particularly given that four of the seven 10 defenses appear, at least on their face, to be related to a copyright infringement cause of action. It makes 11 little sense to require Defendant to plead in greater detail when Plaintiff’s complaint itself is a very short, 12 concise pleading that involves a single claim of copyright infringement. See, e.g., Rosen, 222 F. Supp. 13 3d at, 802-03 (C.D. Cal. 2016) (finding very general “level of specificity [in affirmative defenses for 14 license] particularly adequate in light of Plaintiff’s own vague allegations in the FAC.”). IV. CONCLUSION AND ORDER 15 16 Plaintiff’s motion to strike, ECF No. 19, is GRANTED as to the second and third affirmative 17 defenses without leave to amend and DENIED as to the remaining affirmative defenses. 18 19 IT IS SO ORDERED. 20 Dated: /s/ Lawrence J. O’Neill _____ April 1, 2019 UNITED STATES CHIEF DISTRICT JUDGE 21 22 23 24 25 9

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