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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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13 LARRY G. PHILPOT, Case No.: 3:20-cv-00872-H-MSB 14

Plaintiff, 15 ORDER VACATING HEARING AND v. DENYING PLAINTIFF’S MOTION 16

TO STRIKE DEFENDANT’S

THE BALTIMORE POST-EXAMINER,

17 AFFIRMATIVE DEFENSES Defendant. 18 [Doc. No. 16.] 19 20 On May 8, 2020, Plaintiff Larry G. Philpot (“Plaintiff”) filed a complaint against 21 Defendant The Baltimore Post-Examiner (“Defendant”). (Doc. No. 1.) On September 15, 22 2020, Defendant filed its answer. (Doc. No. 14.) On October 6, 2020, Plaintiff filed a 23 motion to strike every affirmative defense in Defendant’s answer. (Doc. No. 16.) 24 Defendant filed its opposition on October 26, 2020. (Doc. No. 22.) Plaintiff filed his reply 25 on November 2, 2020. (Doc. No. 23.) 26 A hearing on the matter is currently scheduled for November 9, 2020 at 10:30 a.m. 27 The Court, pursuant to its discretion under the Local Rule 7.1(d)(1), determines the matter 28 1 is appropriate for resolution without oral argument, submits the motion on the parties’ 2 papers, and vacates the hearing. For the reasons that follow, the Court denies Plaintiff’s 3 motion to strike. 4 Background 5 Plaintiff is a freelance photographer who specializes in taking photographs of 6 musicians at concerts and other performances. (Doc. No. 9 ¶ 15.) He is the owner of the 7 copyright in a photograph he took of Ted Nugent in Indiana, Indianapolis on July 31, 2013 8 (the “Photo”). (Id. ¶¶ 26–27.) Plaintiff alleges Defendant infringed Plaintiff’s copyright in 9 the Photo by publishing, copying, and displaying the Photo on its websites in February 10 2014. (Id. ¶¶ 32–36.) On May 8, 2020, Plaintiff filed a complaint against Defendant for 11 copyright infringement, seeking actual damages, disgorgement of profits, statutory 12 damages, and injunctive relief. (Id. ¶¶ 39–49.) On September 15, 2020, Defendant filed its 13 answer, in which it raised six affirmative defenses. (Doc. No. 14 at 4.) By the present 14 motion, Plaintiff moves pursuant to Federal Rule of Civil Procedure 12(f) to strike all of 15 the affirmative defenses contained in Defendant’s answer. (Doc. No. 16.) 16 Discussion 17 I. Legal Standards 18 Federal Rule of Civil Procedure 12(f) permits courts to strike “an insufficient 19 defense” from a pleading. Fed. R. Civ. P. 12(f). Motions to strike are “generally regarded 20 with disfavor because of the limited importance of pleading in federal practice, and because 21 they are often used as a delaying tactic.” Kohler v. Islands Restaurants, LP, 280 F.R.D. 22 560, 563–64 (S.D. Cal. 2012). In reviewing a motion to strike, the court must view the 23 pleadings in the light most favorable to the non-moving party. See Wailua Assocs. v. Aetna 24 Cas. & Sur. Co., 183 F.R.D. 550, 554 (D. Haw. 1998). 25 “The key to determining the sufficiency of pleading an affirmative defense is 26 whether it gives plaintiff fair notice of the defense.” Simmons v. Navajo Cnty., Ariz., 609 27 F.3d 1011, 1023 (9th Cir. 2010) (quoting Wyshak v. City Nat. Bank, 607 F.2d 824, 827 28 (9th Cir. 1979)). “Fair notice generally requires that the defendant state the nature and 1 grounds for the affirmative defense. It does not, however, require a detailed statement of 2 facts.” Islands Restaurants, 280 F.R.D. at 564 (citing Conley v. Gibson, 355 U.S. 41, 47– 3 48 (1957)). “[A]n affirmative defense is legally insufficient only if it clearly lacks merit 4 ‘under any set of facts the defendant might allege.’” Id. (quoting McArdle v. AT & T 5 Mobility, LLC, 657 F. Supp. 2d 1140, 1149–50 (N.D. Cal. 2009)). “Generally, to prevail 6 on a motion to strike, the movant must clearly show that the challenged matter has no 7 bearing on the subject matter of the litigation and that its inclusion will prejudice the 8 movant.” Mattox v. Watson, No. CV 07-5006-RGK RZX, 2007 WL 4200213, at *2 (C.D. 9 Cal. Nov. 15, 2007). 10 II. Analysis 11 A. Defendant’s First Affirmative Defense 12 Defendant’s first affirmative defense asserts Plaintiff’s failure to state a claim upon 13 which relief can be granted. (Doc. No. 14 at 4.) Plaintiff contends that, because Defendant 14 already brought a motion to dismiss for lack of personal jurisdiction, asserting failure to 15 state a claim at this stage of the lawsuit is improper. (Doc. No. 16 at 5.) On the contrary, 16 Rule 12(h)(2) provides that failure to state a claim may be raised in any pleading allowed 17 under Rule 7(a), which includes the answer. Fed. R. Civ. P. 7(a); 12(h)(2). The Court 18 therefore denies Plaintiff’s motion to strike the first affirmative defense. 19 B. Defendant’s Second and Fifth Affirmative Defenses 20 In its answer, Defendant asserts as a second affirmative defense that Defendant has 21 not infringed any valid and enforceable copyright owned by Plaintiff, and as a fifth 22 affirmative defense that Plaintiff’s request for monetary relief is barred or limited, 23 including by a lack of causation of any damages by any actions of Defendant. (Doc. No. 24 14 at 4.) Plaintiff argues these are not actual affirmative defenses, but rather “negative 25 defenses” that merely deny an element of Plaintiff’s claim or assert Plaintiff cannot meet 26 the burden of proving his copyright infringement claim. (Doc. No. 16 at 6, 11.) But 27 arguments that an affirmative defense is better characterized as a challenge to or a denial 28 of an element of a plaintiff’s cause of action “provide[] insufficient grounds for striking 1 the defenses.” Smith v. Wal-Mart Stores, No. C 06-2069 SBA, 2006 WL 2711468, at *10 2 (N.D. Cal. Sept. 20, 2006); see Weddle v. Bayer AG Corp., No. 11CV817 JLS NLS, 2012 3 WL 1019824, at *4 (S.D. Cal. Mar. 26, 2012) (“Denials that are improperly pled as 4 defenses should not be stricken on that basis alone.”) (quoting J & J Sports Prods., Inc. v. 5 Delgado, No. CIV. 2:10-2517 WBS, 2011 WL 219594, at *2 (E.D. Cal. Jan. 19, 2011)). 6 Moreover, motions to strike are disfavored. See Islands Restaurants, 280 F.R.D. at 563– 7 64. The Court denies Plaintiff’s motion to strike the second and fifth affirmative defenses. 8 C. Defendant’s Third and Fourth Affirmative Defenses 9 In its answer, Defendant asserts as a third affirmative defense that Plaintiff’s 10 allegations are precluded, in whole or in part, by an express or implied license, and as a 11 fourth affirmative defense that Plaintiff’s allegations are barred by the equitable doctrines 12 of laches, equitable estoppel, waiver, acquiescence and/or unclean hands. (Doc. No. 14 at 13 4.) Plaintiff argues these defenses must be stricken because they are “naked assertions” 14 lacking “any factual support,” and therefore fail “to meet the Twombly/Iqbal plausibility 15 standard.” (Doc. No. 16 at 6–8.) 16 Plaintiff declares that the Court “must apply” the Twombly and Iqbal plausibility 17 standard to Defendant’s pleading of its affirmative defenses. (Doc. Nos. 16 at 3; 23 at 6.) 18 On the contrary, district courts in the Ninth Circuit are currently split over the pleading 19 standard for affirmative defenses. Initially, Ninth Circuit district courts all applied a “fair 20 notice” standard as articulated in Wyshak v. City Nat. Bank, 607 F.2d at 827. However, a 21 split developed after the Supreme Court directed the federal courts to apply a “plausible on 22 its face” standard to allegations in a complaint. See Bell Atlantic Corp. v. Twombly, 550 23 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Subsequently, some courts have 24 suggested that the Twombly and Iqbal plausibility standard also applies to affirmative 25 defenses contained in an answer. E.g. Hernandez v. Cty. of Monterey, 306 F.R.D. 279, 283 26 (N.D. Cal. 2015); Coppola v. Smith, No. 1:11-CV-1257 AWI BAM, 2015 WL 2127965, 27 at *6 n.4 (E.D. Cal. May 6, 2015). Other courts have found that the “fair notice” standard 28 of Wyshak was unaffected by Twombly and Iqbal. See, e.g., Kohler v. Staples the Office 1 Superstore, LLC, 291 F.R.D. 464, 468 (S.D. Cal. 2013); Pac. Dental Servs., LLC v. 2 Homeland Ins. Co. of New York, No. SACV 13-749-JST JPRX, 2013 WL 3776337, at *2 3 (C.D. Cal. July 17, 2013). 4 The Court of Appeals for the Ninth Circuit has not explicitly addressed whether the 5 Twombly and Iqbal plausibility standard should replace the Wyshak fair notice standard 6 for affirmative defenses. However, since Twombly and Iqbal were decided, the Ninth 7 Circuit has continued to recognize the Wyshak fair notice standard. See, e.g., Kohler v. 8 Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015); Simmons, 609 F.3d at 1023. Thus, 9 absent further instruction, this Court will also continue to apply the Wyshak standard, and 10 will not strike any affirmative defense for failing to include sufficient factual support. The 11 Court concludes that the affirmative defenses at issue give Plaintiff fair notice of the 12 defenses. See Wyshak, 607 F.2d at 827. Therefore, the Court denies Plaintiff’s motion to 13 strike Defendant’s third and fourth affirmative defenses. 14 D. Defendant’s Sixth Affirmative Defense 15 Finally, in its sixth affirmative defense, Defendant reserves the right to assert 16 additional affirmative defenses based on information learned or obtained during discovery. 17 (Doc. No. 14 at 4.) Contrary to Plaintiff’s claims, this defense does not create an 18 independent legal avenue for Defendant to assert additional affirmative defenses; rather, if 19 Defendant seeks leave to amend its answer to assert additional affirmative defenses, the 20 request will be considered under applicable federal rules and law. Motions to strike are 21 disfavored, and Plaintiff has failed to demonstrate that he has been prejudiced by 22 Defendant’s statement of its right to seek to amend its answer to add additional affirmative 23 defenses following discovery. See Islands Restaurants, 280 F.R.D. at 563–64; Mattox, 24 2007 WL 4200213, at *2. Thus, the Court denies Plaintiff’s motion to strike Defendant’s 25 sixth affirmative defense. 26 27 28 1 Conclusion 2 For the reasons above, the Court DENIES Plaintiff’s Rule 12(f) motion to strike in 3 entirety. 4 IT IS SO ORDERED. 5 || DATED: November 3, 2020 - | JiaLg | shill 7 MARILYN LE. HUFF, DistrictJudge

UNITED STATES DISTRICT COURT

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