United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW JUDGE
before the Court is the Motion to Strike Affirmative Defenses
of Plaintiff Ventures Edge Legal PLLC. (Doc. 57.) For
the following reasons, the Motion is granted in part and
denied in part.
Ventures Edge Legal, PLLC (“Ventures Edge”) filed
this putative class action lawsuit on November 12, 2015,
alleging that Defendant GoDaddy.com, LLC
(“GoDaddy”) “fail[ed] to disclose certain
material facts” with respect to its sale of the office
software product known as “Microsoft Office 365.”
(Doc. 1 at 2.) GoDaddy moved to dismiss the case under
Federal Rule of Civil Procedure 12(b)(6). (Doc. 21.) The
Court denied that motion in its entirety. (Doc. 48.)
then filed an Answer to Ventures Edge's Complaint. (Doc.
53.) In this Answer, GoDaddy set forth nineteen affirmative
defenses. (Id. at 9-14.) Ventures Edge, in turn,
filed the pending motion to strike eighteen of the nineteen
affirmative defenses, (Doc. 57), and that motion is fully
briefed. (Docs. 61, 64.)
Rule of Civil Procedure 12(f) provides that a “court
may strike from a pleading an insufficient defense.”
The “function of a 12(f) motion to strike is to avoid
the expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues
prior to trial.” Sidney-Vinstein v. A.H. Robins
Co., 697 F.2d 880, 885 (9th Cir. 1983). However, a
motion to strike “should not be granted unless it is
absolutely clear that the matter to be stricken could have no
possible bearing on the litigation.” Brewer v.
Indymac Bank, 609 F.Supp.2d 1104, 1113 (E.D. Cal. 2009).
affirmative defense may be insufficient as a matter of
pleading or as a matter of law.” Kohler v. Islands
Rests., LP, 280 F.R.D. 560, 564 (S.D. Cal. 2012).
“The key to determining the sufficiency of pleading an
affirmative defense is whether it gives plaintiff fair notice
of the defense.” Wyshak v. City Nat'l
Bank, 607 F.2d 824, 827 (9th Cir. 1979). “[A]n
affirmative defense is legally insufficient only if it
clearly lacks merit under any set of facts the defendant
might allege.” Kohler, 280 F.R.D. at 564
(internal quotation marks and citation omitted). “If
the court is in doubt as to whether the challenged matter may
raise an issue of fact or law, the motion to strike should be
denied, leaving an assessment of the sufficiency of the
allegations for adjudication on the merits.”
Pickern v. Chico Steakhouse, LP, No.
12-cv-02586-TLN-CMK, 2013 WL 4051640, at *2 (E.D. Cal. Aug.
Edge's challenges to GoDaddy's affirmative defenses
fall into three broad and sometimes overlapping categories.
Ventures Edge argues that twelve of the “affirmative
defenses” are not affirmative defenses at all, but
rather negative defenses or denials-or, in one case,
“nothing.” The other six challenged affirmative
defenses, Ventures Edge contends, are insufficiently pleaded.
Some of the challenged defenses are additionally argued to be
legally insufficient based on the Court's prior ruling on
GoDaddy's motion to dismiss.
is no need, however, to engage in a lengthy and fine-grained
analysis over whether each of the purported affirmative
defenses is best characterized as an affirmative defense or a
negative defense or denial. The mislabeling of defenses as
affirmative rather than negative is not grounds for striking
those defenses. See Kohler, 280 F.R.D. at 567. This
is so because just as Rule 8(c) permits the pleading of
affirmative defenses in an answer, Rule 8(b) permits the
pleading of negative defenses in an answer. To dismiss a
defense simply because it is mislabeled is thus
“unnecessary formalism.” Hernandez v.
Balkian, No. CV-F-06-1383 OWW/DLB, 2007 WL 1649911, at
*3 (E.D. Cal. June 1, 2007).
the pleading requirements as to defenses and affirmative
defenses are, if not identical, sufficiently similar as to
render any distinction irrelevant for the purposes of this
motion. Federal Rule of Civil Procedure 8 provides the
general rules for all pleadings, but it is divided into
separate subparts governing the pleading of claims, defenses,
and affirmative defenses. Rule 8(a), governing claims,
requires a “short and plain statement of the claim
showing the pleader is entitled to relief.” Rule 8(b),
governing defenses, requires a party to “state in short
and plain terms its defenses to each claim asserted against
it.” Rule 8(c), governing affirmative defenses, states
that “a party must affirmatively state any avoidance or
affirmative defense.” This Court has previously noted
the important difference in language between Rule 8(a) and
Rule 8(c) and found that affirmative defenses are not subject
to the pleading requirements set forth in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007). See Verco
Decking, Inc. v. Consol. Sys., Inc., No.
CV-11-2516-PHX-GMS, 2013 WL 6844106, at *4-5 (D. Ariz. Dec.
23, 2013). Thus,
the only pleading requirement for an affirmative defense, as
opposed to a defense or a claim, is that “a party must
affirmatively state” it. That affirmative statement
merely needs to give fair notice by meeting traditional
notice-pleading standards. Although the Supreme Court has
abrogated the “any set of facts” ...